When the client falls on a bad lawyer

TFalling for a bad lawyer can ruin a life, as Mr.me X. In January 2008, she learns that, following a dispute with a creditor, her house is going to be sold at auction. She asks a lawyer, Mr.e Y, what she can do to prevent this good from escaping her. He advises her to have it bought by a nominee – although this is prohibited by law.

A decree of July 27, 2006 (section 72) transposed into the Code of Civil Enforcement Procedures (Article R 322-39) says, in fact, that the debtor does not have the right to become a bidder, by himself or “by intermediary” – this, in order to ward off insolvent bidders who will not be able to pay the hammer price and who will only harm creditors.

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Mme X is put in touch with Mr. Z, who accepts the principle of interposition. A secret agreement, written by their two councils [Me Y et Me W]provides that, within ten days following the forced sale, Mr. Z will, “to oust the successful bidder », one-upmanship “of the tenth” price.

His lawyer, Me W, will be able to deposit this percentage, as required by law, thanks to a check sent to him by Mrs.me X, and the fees (4,000 euros) that she will pay him. Mme X, who will be able to stay in the accommodation, will repay the installments of the loan taken out by Mr. Z to pay the balance. As soon as she can, she will buy the house back from him, at the auction price, and not at the market price.

secret deal

Mme X ratifies the protocol, but… his lawyer fails to ask his colleague for the copy signed by MZ On April 14, 2009, the latter becomes the owner of the house, for 123,000 euros. Thirteen months later, contrary to forecasts, he demanded the eviction of the occupant. This one seizes justice, so that he is condemned to respect his commitment.

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Alas, Mr. Z’s lawyer is opposed to her producing the protocol or any document that evokes it: as he has “never been signed by his client” – what she discovers –, he does not have the status of an official coin, but falls under the “correspondence between colleagues”covered by the “confidentiality of exchanges”.

The magistrates therefore order his “withdrawal from debate”which was validated by the Lyon Court of Appeal on September 20, 2012, then by the Court of Cassation on February 27, 2014 (12-29.696) – Mme X having unsuccessfully maintained that ” the client is not bound by the professional secrecy which is binding on the lawyer..

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Mme X then loses all his lawsuits, and his criminal complaints against his adversaries are dismissed. Me Y, whom she asks to file a complaint with a civil action, still fails to do so. From 2014, he no longer answers her. 1er June 2017, she learns that her firm is the subject of a judicial liquidation and that the man has disappeared – without returning his file to her.

Prescription

In 2020, it is a desperate litigant that Me Bertrand Balas agrees to receive. After having reconstructed the affair over the documents that Mme X finds, he assigns MMA IARD, the insurer of Me Y, so that he is ordered to compensate her for the faults that the lawyer has committed (omission of the signature and the filing of a complaint). He argues that M.e Y acted as part of a “single task”consists in “get the house back », and whose ” end “ coincides with the liquidation of 1er June 2017, so that its action is not time-barred, since it could be launched within five years after 1er June 2017, under article 2225 of the civil code.

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MMA replies that there were two missions: the one concerning the protocol came under a “legal activity”whose challenge is, under article 2224 of the civil code, prescribed since March 14, 2016, five years after Mme X discovered that it had not been completed. The one concerning the filing of the complaint came under a “judicial activity”whose challenge is prescribed, under article 2225 of the civil code, five years after its end, that it dates from January 8, 2015, and not from 1er June 2017.

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On October 6, 2022, the Lyon Court of Appeal rules that the action against the first is prescribed, but that that against the second is admissible, Mme X having continued to write to Me Y, then to complain about his difficulties as President of the Lyon Bar Association, until July 2017. First success, finally!

But for what result? Me Balas will have to demonstrate that Me There is “lose a chance” to Mme X to obtain the condemnation of his adversaries for fraud. If he succeeds, M.me X will surely not obtain the 1.2 million euros he is claiming in reparation for all the hassles suffered, nor even the price of the house, the “loss of luck” resulting in only partial compensation. His client will therefore be able to consider herself happy if she recovers the famous “tenth”advanced in 2009.

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