In divorce cases, as in other legal matters, when an attorney makes a procedural error, the client’s hope of obtaining what they were seeking – typically a compensatory payment to soften the expected decrease in their standard of living – disappears. The client can take legal action against the attorney and demand compensation, but this compensation will only be partial. This is because the principle states that “repairing the loss of chance cannot be equal to the advantage that chance would have provided if it had been realized.” It may even be nonexistent if the attorney proves that the client for whom they were previously advocating had no chance of winning the case. Two examples illustrate this.
In 2016, a family court judge in Amiens granted a divorce for Mr. X with the exclusive blame placed on the husband. This decision was made after it was determined that four of the husband’s actions (adultery, excessive investment in a hobby, failure to pay debts, failure to contribute to the children’s upkeep) were violations of marital duties and made continued cohabitation intolerable. Despite the 2004 divorce law that removed the link between fault and compensatory payments, Mr. X could still be awarded a sum considering the expected decrease in his standard of living. However, the judge rejected his request (450,000 euros) due to the “particular circumstances of the breakup”: the husband secretly left the marital home before filing for divorce, and stopped contributing to household expenses.
Mr. X wanted to challenge this decision, but his lawyer, Me Z, did not file his conclusions with the court registry, causing his appeal declaration to be nullified. He decided to take legal action against Me Z and initially asked her if filing a cassation appeal against the nullification order was appropriate, but she did not respond. In an attempt to prevent the lawyer from later blaming him for inaction, he proceeded with the appeal. He lost 6,600 euros (in legal fees and procedural costs) as the cassation appeal was rejected. Following this, Mr. X sued Me Z before the judicial court in Arras, explaining that without her mistake, he would have inevitably had the Amiens judgment overturned: the concept of “particular circumstances of the breakup” should only cover very serious facts, as clarified by a Ministry of Justice circular. The facts invoked in this case did not meet this standard.
In such situations, the client’s recourse is limited, and they face difficulties in obtaining full compensation for the losses incurred due to an attorney’s negligence. While the client can pursue legal action against the attorney for their mistake, the compensation received is typically partial and subject to the principle that the loss of chance cannot be equated to the potential advantage had the chance been realized. This can lead to clients facing significant financial setbacks and further legal expenses in attempting to rectify the attorney’s errors. It is essential for both clients and attorneys to adhere to legal procedures diligently to avoid such situations and ensure the best possible outcomes for all parties involved.
