The Supreme Court annuls the conviction of a lawyer who missed the deadlines to appeal for not being a registered practitioner

The court recalls that criminal sanctions should be the last resort and points to civil and disciplinary channels

MADRID, 18 Ene. (EUROPA PRESS) -

The Supreme Court (TS) has annulled the sentence imposed on a retired lawyer who missed the deadlines to file an appeal on behalf of a client because he was not registered as a practicing lawyer, while stressing that, having ruled out "deception" , the appropriate route is not criminal but civil or even disciplinary.

The Criminal Chamber of the Supreme Court thus upholds the appeal filed by the lawyer and annuls the sentence of the Provincial Court of Valencia, which in turn confirmed the sentence to one year of disqualification, a fine of 2,700 euros and compensation of 30,000 euros to the customer.

According to the Supreme Court, the client had hired the lawyer to file a claim for patrimonial responsibility against the Ministry of Health of the Generalitat Valenciana for deficient performance. The agreed fees included the judicial route if the administrative failed.

The administrative claim was dismissed but the lawyer let the deadline pass to insist on that path or jump to court, something the client found out when he asked for explanations about the status of the case.

The lawyer was convicted of a crime of professional disloyalty under article 467.2 of the Criminal Code (CP), applicable only to lawyers registered in the corresponding Bar Association as practitioners, a condition that this lawyer did not meet, according to the TS.

The sentence, presented by Judge Manuel Marchena, indicates that, in accordance with the General Statute of the Legal Profession, the condition of practicing "constitutes a 'sine qua non' assumption so that the Law graduate can claim the status of professional", for what such status "corresponds exclusively" to the practicing collegiate.

In addition, the Second Chamber recalls "the consideration of the criminal law as an instrument of ultima 'ratio'", adding that, in the specific case, "an interpretation that leads to criminalizing any act of professional disloyalty (...) leads to the excessiveness in the interpretation of article 467.2 of the CP".

"The idea that disloyalty in the practice of law can imply, without further ado, the requirement of criminal responsibility is not reconciled with the need to reserve an application space for the sanctioning regime provided for in the General Statute of the Legal Profession," he says.

In this sense, it concludes that with regard to this lawyer, "ruled out the existence of a previous deception aimed at obtaining a profit, the damages caused as a result of the assumption of the task of legal efforts by a collegiate not authorized for the professional practice of law, they must be repaired by a means other than that offered by criminal law".

Specifically, it points out that "non-compliance with a contract (article 1544 of the Civil Code) or the requirement of disciplinary responsibility as a non-practicing collegiate (article 140 of the Statute) represent the ways to make any reparation claim for such damage a reality."