The Provincial Court of La Rioja has acquitted of a crime of misappropriation a lawyer accused of keeping 750 euros from a client. The ruling declares it proven that, at the beginning of 2019, the plaintiff contacted the defendant to advice regarding a possible lawsuit on a property shared between two corrals and a house in the Riojan town of Enciso.
To do this, the lawyer asked him 750 euros as provision of funds to assume the defense. For one year, the accused He took no action and gave no explanation. to the La Rioja Bar Association despite having been requested following a complaint filed by his client. He injured party died before the oral hearing.
The court maintains that this list of facts cannot lead to a conviction taking into account the principle of presumption of innocence, which is why the accuser is “who has to prove the facts and the guilt of the accused, without him appearing burdened with the procedural burden of proving his innocence.” The court maintains that, in the present case, an accusation is made against a lawyer for the crime of misappropriation for having received 750 euros for a client and not having fulfilled the assignment received.
The Chamber reminds that when the lawyer receives amounts as a provision of funds, the crime of misappropriation is not appreciated, Even if the contract is not fulfilled, what is received is on account of the fees. On the contrary, when this provision is received for specific procedures that the lawyer must pay to third parties, the crime is committed if, without giving them the agreed destination, he makes them his own. In the same way when he applies to his fees what he has received from a jurisdictional body or from third parties to deliver to his client. Well, in these cases he is a manager of someone else’s money, while in those he receives payment for his services, so that he legitimately makes it his own.
“To make matters worse, -the magistrates continue-, they have not been accredited in the act of trial the details of the complaint made by the injured party before the Bar Association denied by the defendant, such as that a year passed without any communication, or news of any action, nor that he did not answer the calls of the injured party and his children, since “The injured party died before the trial and his statement during the investigation phase was without contradiction, as it was made before the person under investigation appeared in the proceedings.”
The court argues that it is possible to proceed with the assessment, as evidence for the prosecution, of the witness statements given in the summary when the witness has died, it is impossible or especially difficult to have him appear, or his whereabouts are unknown. “As long as, in the first place, they have been provided in an unobjectionable manner, which implies the presence of the judge,” he says.
Based on all this, the magistrates acquit the accused of the crime of misappropriation “without prejudice to the civil actions that may correspond to the injured parties or the disciplinary responsibilities that the defendant could have incurred,” they conclude.
2024-04-01 10:57:18
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