SCOPE OF SERVICES AND LAWYER'S FEES.
To understand the nature of the contractual relationship between a solicitor and a client, it is necessary to outline what the professional activity entails and how the relevant remuneration is regulated.
The distinction between judicial and extrajudicial proceedings
The regulations governing professional fees and the current fee scales divide a solicitor’s work into two distinct broad categories:
Legal services. This includes defending and representing clients before the courts (civil, criminal and administrative courts), and the fee structure is designed to cover the individual stages of the proceedings (preliminary research, initial proceedings, the investigation phase and the decision-making phase).
Out-of-court work. This refers to assistance provided outside court proceedings, such as legal advice, professional opinions, the drafting of contracts, or assistance in mediation and conciliation proceedings. It is a completely separate activity, which is remunerated regardless of whether or not it is followed by legal proceedings.
Nature of the service: obligation of means
Pursuant to Article 2230 et seq. of the Civil Code, the contract with a solicitor concerns the provision of professional services, which constitutes an obligation of means rather than an obligation of result. The professional undertakes to perform their services with the diligence required by the nature of the work carried out (Article 1176, second paragraph, of the Civil Code).
Therefore, in legal proceedings, a solicitor cannot guarantee that the client will achieve the desired outcome (winning the case or having the claim upheld), as the final result is always subject to the judge’s impartial assessment and prudent judgement.
Similarly, in out-of-court proceedings, a solicitor cannot guarantee the successful conclusion of a deal, the actual signing of a contract or the acceptance of a settlement proposal, as the achievement of such outcomes ultimately depends on the free will and consent of the parties or third parties.
The lawyer is therefore not liable for the rejection of the client’s claims in court or for the failure of out-of-court negotiations. Professional liability arises only where there has been a breach of the duty of care or where serious technical errors have been made that have caused actual and demonstrable harm to the client’s position.