Derivative action

The civil liability of the Lawyer, who like any other professional, is subject to the rule of law, is also liable for damages that due to possible fault and negligence could cause his client, due to his lack of professionalism or expertise in the treatment of a certain lawsuit.

However, in the case of these derivative action defense lawyer, due to the fact that the legal proposals that can be made in the management commission of their client, are subject not only to the rule of law, but also to the subjective decision of third parties in certain cases. , that responsibility is not usually so defined.

Causal link of the damage caused

The damage caused in the action or inaction of the Lawyer, must occur in a causal link with the entrusted matter, the damage must be economically assessable and individualized.

His mission is not limited to faithfully executing a mandate within the framework of the Law. In a state of law, the Lawyer must serve the interests of justice, as well as proclaim and defend rights and freedoms.

A constitutional state of law could not be conceived in which lawyers, called to defend it and defend the rights of people, would suffer:

• Obstacles to carry out their work (violating their freedom, understood as the power to carry out specific actions).
• Threats or pressures aimed at altering their technical opinion (thus affecting their independence, understood as “non-subordination”).
• Censorship for their opinions or criticisms of the exercise of power (affecting their freedom of expression).
• Exclusion in democratic election processes.

What rights does the lawyer have for the mere fact of practicing as such? How are these rights related to the functioning of the constitutional rule of law, the defense of people's rights and the personal fulfillment of the lawyer? When are your freedom of professional practice and your independence of judgment affected? What limits does your freedom of expression have? What rights do you have that are exclusive to your work as a lawyer? In this essay, we will look at sixteen rights of attorneys and address these and other concerns.

Freedom of professional exercise and technical independence are necessary for there to be impartial conflict resolution and, therefore, effective justice. For its part, freedom of expression and the right to be elected as a representative or accept public office are linked to the very idea of ​​democracy. Hence the special significance of these rights for the functioning of the constitutional State of law.

1. Freedom of professional exercise. The TC has already explained that the Constitution, by recognizing freedom of work, also recognizes the right that people have to choose the occupational or professional activity they want and their right to "free exercise of the profession"; that is, to freely exercise the profession for which they have been trained. From our point of view, this means, at least, that the lawyer can:

To. Practice your profession as long as you meet the legal requirements. For this reason, this freedom would be manifestly affected if the authorities (whether of the government or of the bar associations) prevent a person from practicing law who meets the requirements established by the legal system to do so. In a previous article we have detailed and discussed these requirements.

1. Decide how to practice your profession.This includes acting as a consultant, defender, assuming positions and functions reserved for lawyers (which we detail below), but also those that are not reserved for lawyers, such as acting as an arbitrator, conciliator or mediator). They can also manage interests (promotion of a point of view in a transparent way to guide a public or private decision) according to the means established by law. This activity should not be confused with carrying out crimes such as bribery, influence peddling or simulated influence peddling.
2. To carry out their profession without intimidation, obstacles, harassment or undue interference. This freedom protects the performance of all the acts that the lawyer must carry out in order to exercise his profession (whether within the framework of the defense or outside of it) such as meeting with clients or potential clients, accessing public information, presenting writings, obtain evidence, meet with authorities, etc. It is enforceable against all types of authorities which must respect it at all times.
3. Independence of criteria. Within or outside of sponsorship, in order to fulfill his mission the lawyer needs to be independent of the pressures that his client, the State, third parties could exert on him and he must even be independent of his own interest (which happens when his professional practice can be affected by personal interests, for reasons of friendship, kinship, ideological, political, cultural or other similar factors).

Note that the administration of justice is based on the resolution of conflicts by impartial judges in a contradictory system in which lawyers can freely decide the methods and techniques to follow in their defense. Hence, it is argued that for there to be a correct administration of justice, the independence of the lawyer is as important as the impartiality of the judges.