Supreme Court: Lawyer Liability for Failure to Inform on Likelihood of Success

1. The facts

   The case, brought before the Supreme Court following an appellate ruling against a lawyer, concerns an alleged breach of duty during the legal representation. According to reports in legal news outlets such as Diritto e Giustizia and Cassazione.net, a client sued their defense counsel, claiming they had not been informed of the foreseeable risk of defeat in a civil lawsuit. Having lost the underlying proceedings, the client was ordered to pay the counterparty's legal costs. The Court of Appeal initially held the professional liable, reasoning that the breach of the duties of information and dissuasion was sufficient in itself to ground an obligation to pay damages. The lawyer appealed to the court of last resort, challenging the automatic link between the failure to inform and the financial loss suffered by the client.

2. 

   The applicable legal framework

   The relevant legal framework is rooted in contractual liability and professional diligence rules.

   1. Art. 1176, paragraph 2, c.c.: establishes that in fulfilling obligations associated with a professional activity, diligence must be evaluated with regard to the nature of the activity exercised.
   2. Art. 1218 c.c.: provides for the liability of a debtor who fails to perform correctly, unless they prove that the non-performance was due to impossibility arising from causes not attributable to them.
   3. Art. 2236 c.c.: limits liability strictly to cases of fraud or gross negligence when the performance involves solving technical problems of special difficulty.
   4. Art. 27 Deontological Code: obliges the lawyer to clearly inform the client about the features of the assignment and the potential risks of a negative outcome.

3. What the case law says

   Supreme Court case law has established that a lawyer is not a mere executor of the client's instructions, but an advisor required to exercise an active duty of dissuasion. However, recent case law has emphasized a critical clarification regarding the causal link. The Court clarified that a breach of the duty to inform does not automatically entitle the client to damages. To obtain financial compensation, the client must prove, including through simple presumptions, that had they been properly advised of the low probability of success, they would have chosen not to commence or continue the litigation. Without proof of this hypothetical alternative conduct, the damage cannot be causally attributed to the lawyer's omission, as the client might still have decided to pursue litigation regardless.

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8. What it teaches professionals

   Recent case law developments point to essential best practices in legal practice.

   1. Always document in writing that the client has been informed of low chances of success, preferably through a written opinion or a specific clause in the engagement agreement.
   2. Carefully assess the client's position to verify whether the decision to proceed reflects a conscious choice to assume litigation risks.
   3. Do not underestimate the failure to inform: although the burden of proving causation rests on the client, the omission still constitutes a contractual breach that exposes the practitioner to disciplinary sanctions and potential damage claims.

References: Art. 1176 c.c.Art. 1218 c.c.Art. 2236 c.c.Art. 27 Codice Deontologico Forense

Editorial oversight: Avv. Federico Papa·ICAMUpdated 22 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction