Your attorney has made a mistake, but did you perhaps contribute to it as well? In attorney liability (Anwaltshaftung, the liability of an attorney towards his or her client), contributory negligence on the part of the client can play a role in rare cases. This means that attorney liability is in principle possible even where the client has made a mistake of their own, but the client’s own contribution can reduce the claim for damages or, in exceptional cases, even exclude it. In this article, we explain in plain terms what Section 254 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) on contributory negligence (Mitverschulden) means, in which circumstances contributory negligence can become relevant in legal advice, what consequences it has, and we give examples from practice. We also classify the case law of the Federal Court of Justice (Bundesgerichtshof, BGH) on the client’s contributory negligence and give guidance on how to avoid an allegation of contributory negligence in attorney liability.
Introduction: What Does Contributory Negligence under Section 254 BGB Mean?
Before we turn to the special features of attorney liability, it is worth looking at the statutory basis. Contributory negligence is governed by Section 254 (1) BGB. In simplified terms, this provision states: if the injured party contributed to the occurrence of the loss, the obligation to pay compensation and the extent of the damages are reduced according to the share of the injured party’s own fault. In other words, anyone who partly contributed to their own loss may receive less compensation or, in extreme cases, none at all. This principle applies generally in the law of damages, and therefore in principle also where an attorney makes a mistake but the client contributed to that mistake.
Important: contributory negligence does not mean that the client must have acted culpably in a moral sense. It is an objective assessment of whether the client breached certain duties of care in their own affairs. In legal terms, this is also referred to as duties to mitigate loss (Schadensminderungspflichten) or obligations owed to oneself (Obliegenheiten). For example, the law expects an injured party to try to avert or mitigate a loss once it has been recognised (Section 254 (2) BGB). If this does not happen, contributory negligence may come into consideration, even if the original mistake was the attorney’s.
When Can the Client Be Accused of Contributory Negligence?
In attorney liability, the hurdles for contributory negligence on the part of the client are high. In principle, it is the attorney’s task to protect the client from loss. The BGH emphasises in its established case law that an attorney generally cannot rely on the client’s contributory negligence insofar as the error lies within the attorney’s own area of duty. For legal errors, missed deadlines or incorrect legal advice, the attorney is as a rule fully liable: the client was entitled to rely on the professional they had engaged performing the task correctly.
There are nevertheless exceptions. Contributory negligence on the part of the client comes into consideration above all where the client breaches their own duties to cooperate or does not adequately look after their own interests. Typical situations in which the client’s conduct can affect attorney liability include:
- Incomplete or late documents: The attorney asks in good time for important documents, such as contracts, official notices or evidence, but they are handed over too late or incompletely. As a result, the attorney may, for example, miss a deadline or only be able to present the case inadequately. In such a case, the client contributes to the occurrence of the loss because the necessary cooperation did not take place.
- No response to queries: The attorney asks questions or requests additional information in order to prepare an action or a defence. If these queries remain unanswered and the attorney therefore lacks crucial details, this can later be regarded as contributory negligence.
- Instructions contrary to the attorney’s advice: The client insists on a particular course of action although the attorney clearly advises against it, or the other way round: the client expressly demands that no appeal be lodged although the attorney recommends appealing. If the case is lost as a result, the client’s own decision may have contributed to the loss. The prerequisite, however, is that the attorney has previously explained the consequences clearly. The courts examine very closely here whether the attorney fulfilled the duty to advise; merely pointing to the client’s wishes is not sufficient for this.
- Important information withheld: The client knows the facts best. If crucial facts are withheld from the attorney or false information is given, the attorney may take the wrong steps, for example if a payment order (Mahnbescheid) that has already been received or a communication from the opposing party is concealed. According to the case law, a client who does not provide the attorney with the necessary factual information can be held contributorily negligent in such cases.
What Are the Consequences of Contributory Negligence for the Claim for Damages?
If a court finds contributory negligence on the part of the client, this has a direct effect on the claim for damages: the claim is reduced according to the share of contributory negligence.
In practice, this often means an apportionment by quota. The court estimates how large the client’s causal contribution is in relation to the attorney’s error, for example 20 % client, 80 % attorney. Accordingly, the attorney would only have to compensate 80 % of the loss. If the client’s contributory negligence predominates (more than 50 %), the claim may even be excluded entirely. Such cases, however, are the absolute exception.
Worth knowing: slight carelessness does not automatically lead to a reduction. The courts take all circumstances into account and weigh up in particular whose area of responsibility the main error fell within. Often the attorney’s fault predominates so clearly that no deduction is made, even if the client did not act optimally in every respect. A reduction only comes into consideration if the client’s own contribution actually helped to cause the loss.
Illustrative Calculation of the Consequences (Fictitious Example)
The following numerical example is purely hypothetical and serves only as an illustration; it does not describe a real case: an attorney misses an important appointment, as a result of which a lawsuit is lost. The financial loss amounts to EUR 10,000. In court it emerges that important documents were only handed over at the last minute, although the attorney had asked for them early on. The court assesses the contributory negligence at 20 %.
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| Item | Amount / share |
|---|---|
| Total loss | EUR 10,000 |
| Client’s contributory negligence quota | 20 % |
| Attorney’s obligation to compensate | EUR 8,000 (80 %) |
| Client’s own share | EUR 2,000 (20 %) |
Had the documents been handed over completely and in good time, the full amount would probably have been awarded. Without contributory negligence, injured parties are in principle compensated for the full loss, insofar as the attorney is liable.
BGH Case Law: What Do the Courts Say about Contributory Negligence?
The case law of the Federal Court of Justice has made it clear that attorneys cannot easily evade responsibility by shifting the blame onto the client. The BGH emphasises in its established case law that, according to the content of the attorney’s contract, preventing loss is in principle the attorney’s business. The client engaged the attorney precisely in order to avoid errors; even a client with legal knowledge is entitled to rely on their attorney.
A revealing example is provided by a BGH judgment of 13 October 2016 (case no. IX ZR 214/15). In that case, the client did not want to lodge an appeal after losing a lawsuit and instead asked the attorney to negotiate an instalment payment agreement. The court of appeal took the view that the client was predominantly contributorily negligent because she herself had decided not to lodge an appeal. The BGH saw things differently: the attorney should have urged the client to lodge the appeal and explained the prospects of success instead of remaining inactive. Because he failed to do so, contributory negligence on the part of the client did not come into play. The omission clearly fell within the attorney’s area of responsibility, as it concerned a legal assessment that the client, as a layperson, could not make herself.
What the Case Law Shows
An attorney generally cannot rely on contributory negligence if the error lies within his or her core duties, i.e. in advice, the conduct of litigation or deadline control. Only exceptionally, for example where the client withholds necessary information or deliberately acts contrary to clear recommendations, can contributory negligence reduce the recourse claim. The courts examine such cases very closely; they frequently decide in favour of the client if the attorney neglected his or her duties to warn and advise. If, for example, an attorney recognises a danger that the client may not notice, he or she must expressly point it out. If this warning is not given, liability as a rule remains with the attorney.
Practical Tips: How Clients Can Avoid Contributory Negligence
As a client, there is a good deal you can do to reduce the risk of an allegation of contributory negligence:
- Submit documents completely and on time: The sooner the attorney knows all the facts, the lower the risk that something will be overlooked. Late or incomplete documents are among the most common causes of later objections of contributory negligence.
- Do not delay responses: Answering the attorney’s queries promptly protects you from later being seen as a client who held up their own representation.
- Listen to your attorney’s advice: Anyone who engages an attorney for his or her professional assessment should take clear advice seriously, for example on lodging an appeal, and weigh up the options together. If you deliberately decide against the advice, it is advisable to have this confirmed in writing in order to avoid later misunderstandings.
- Disclose important details: All relevant information should be communicated, including seemingly unimportant details that may be decisive for the legal position. The attorney is bound by professional confidentiality, so there is no reason to withhold information. If it later emerges that information was withheld from the attorney, this jeopardises not only the success of the matter but also your own claim for compensation.
- Document communication: Deadlines, e-mails and conversations with the attorney should be recorded. Complete documentation can prove, in the event of a dispute, that you fulfilled your own duty to cooperate.
- Limit the loss, obtain a second opinion: If you suspect that your own attorney has made a mistake, do not wait. The earlier a second attorney reviews the documents, the greater the chances of securing your rights or at least limiting the extent of the loss. This form of loss mitigation is in principle expected of the injured party (Section 254 (2) BGB).
These measures ensure that the attorney can do his or her work as well as possible, and they take the wind out of the sails of any later objection of contributory negligence. If a dispute about liability nevertheless arises, a client whose own conduct has been correct and well documented is in a much stronger position.
Conclusion: Attorney Liability and Contributory Negligence, What Clients Should Bear in Mind
Mistakes can happen, to attorneys as well as to clients. In principle, the attorney is fully liable for advisory errors, missed deadlines and other breaches of duty, even if a layperson could not have recognised these errors themselves. Contributory negligence on the part of the client is only relevant in particular constellations and does not serve to leave injured parties without protection. The courts weigh up in each individual case who bears which share of the loss; they frequently decide in favour of the client if the attorney failed within his or her own area of responsibility.
For clients, this means: cooperate actively with your attorney, keep documents in good order, answer queries promptly and record important communication in writing. This reduces the risk of having to accept cuts in damages if the worst comes to the worst.
Non-Binding Initial Assessment
If you suspect that there has been an attorney error in your own case, it pays to act promptly: an early legal review helps to secure possible claims before deadlines expire. A first conversation with an attorney experienced in attorney liability can clarify whether a liability claim exists, how high possible damages could be, and whether the client could be accused of contributory negligence. Anyone who seeks advice early secures their rights most effectively and avoids their own claim failing because of avoidable formalities or omissions.
