Disputes invoking the liability of lawyers for professional negligence in Bulgaria are rarely reported. The small numbers make it difficult to derive robust conclusions about the long-term trends in the associated jurisprudence.
Without the benefit of statistical power, there is received wisdom. This is that Bulgarian courts’ first instinct is to reject claims for damages issued against lawyers, and that they do so whenever the alleged loss cannot be shown to be either solely or overwhelmingly related to the conduct of the lawyer. In this way, lawyers avoid liability in Bulgarian law except in the most blatant and egregious of situations of misfeasance.
In connection with a high-value claim against a well-known regional legal practice on behalf of an international client, NBLO’s dispute-resolution team conducted a survey of recent cases in which claimants had sought to allege fault or negligence on the part of an advocate, and found that the following devices served to either limit or negate fully an advocate’s liability:
- The claimants could not show the closest causal connection between the lawyer’s alleged act or omission and the loss
- The scope of the lawyer’s duty was found by the court to be limited – for instance, by a finding that the lawyer had not expressly agreed or otherwise been placed under a duty in advance to undertake a specific action
- By findings that the alleged loss was ultimately connected to the Court’s discretion rather than that of the lawyer
- Where the allegation was that the lawyer had not performed a specific procedural step but he or she could credibly counter that he or she had, at the relevant time, considered the step as contrary to the client’s interests, at that particular time (at the same time, the court tends to give a very wide margin of appreciation as to what qualifies as in a client’s interests).
Still, there are, albeit rarely, cases where Bulgarian judges find advocates liable. This will come as a relief to claimants who feel very strongly that the relative immunity from delict of professionals in Bulgaria and specifically, that enjoyed by allegedly wrongdoing lawyers, is unfair and counterproductive.
Case 227 of 23 August 2013 of the Supreme Court of Cassation was a case of a positive finding of liability. In it, the Supreme Court took the opportunity to describe the boundaries of an advocate’s liability. Firstly, in describing the attorney’s standard of care, the Supreme Court stated this to be greater than that required of a careful owner and even greater than of a careful business person since, according to the Court, the Advocacy Act imposed an especially exigent requirement on advocates to act lawfully in the interest of the client in the best possible manner (the first part of this would resemble the fiduciary nature of lawyers’ duties familiar to English and American lawyers).
Secondly, in the Supreme Court’s analysis, an advocate had to protect all (key?) items of a client’s legal position. If the defence of a claim against the client fails because of the absence of a minimum level of care, the lawyer can be held liable for all damages flowing from the omission or act.
Perhaps however, it was the egregiousness of the failures of the advocate in the case that were the most significant element behind the finding.
The advocate had repeatedly made statements to his client which were subsequently shown as false. These were to the effect that an important court document had been filed, where it had in fact not. The misleading statements were in writing (even if the writing was in the form of text messages, a relatively unorthodox form of writing in the eyes of Bulgarian courts) and therefore more likely to meet the high evidential requirements. This falsity had resuled in the client losing the opportunity to engage in the proceedings properly before its actions had become time-limited and the consequent financial loss had inexorably followed.
It is difficult to be sure whether slight variations in the facts (or indeed – even identical facts) would result in an identical finding in future.
Notably, most cases reported as reaching the courts concern advocacy in court. Advocates’ professional duties in other contexts or the duties of lawyers who are not admitted to practise as advocates may be even more protected from liability.
For instance, in the context of the advisory role of lawyers in transactions or in other non-contentious situations,which are potentially either equally or even more error-prone than court trials, the alleged harm and the amounts at stake may potentially be even higher while the establishment of the role of the advocate, and consequently, of his or hercausal connection to any loss – even remoter.
It is perhaps common sense that clients who want to encourage their professional advisors to exercise the utmost care should take precautions to document all correspondence and clearly consider and express their wishes and instruction. Such formality and deliberateness may seem excessive but they would serve to minimise risk and to ensure greate chances of success should a dispute arise.
Such planning is especially important given that the professional indemnity insurance cover of Bulgarian professionals is often non-existent or minimal.
New Balkans Law Office regularly advises on issues of professional negligence liability in both the contentious and non-contentious contexts and both preventively, and after the occurrence of loss. As well as on the duties of advocatesoperating under Bulgarian law, we are asked to advise on the delictual (tortious) and contractual responsibilities of other professionals including medics, civil engineers, architects, business and financial advisors.
Do not hesitate to contact us if you require advice on how to minimise your own risk of liability for professional negligence or those for whom you are responsible, the risks of error and carelessness in a venture or operation, or if you are involved in a dispute in which you feel the malpractice liability in Bulgarian legal or other professional is engaged.
Acting as a Bulgarian law expert in the context of a FIDIC Dispute Adjudication Board
NBLO acted as Bulgarian law experts to a Dispute Adjudication Board constituted under the terms of a FIDIC modelled construction works agreement between the Bulgarian government and a continental Europe-based general contractor. Advised in detail and in successive iterations in relation to the Bulgarian law questions raised by the DAB at the summary of issues stage as well as at the reply and comments stages. Of particular importance to the DAB was the ability of NBLO lawyers to advise on the distinctions between Bulgarian law principles and proximate English and Swiss law concepts in the law of contract as well as to advise on the direct effect and direct applicability of certain European Commission legislation as a matter of Bulgarian law.
© New Balkans Law Office 2018