The Criminal Chamber of the Supreme Court has annulled the sentence that sentenced a retired lawyer to compensate a client with 30,000 euros for the crime of professional disloyalty for having missed the deadlines to appeal the inadmissibility of a claim for patrimonial responsibility.
The court annuls the sentence of the Provincial Court of Valencia that confirmed the one issued by a Criminal Court of Valencia that sentenced the lawyer to 1 year of imprisonment. special disqualification to practice as a lawyera fine of 2,700 euros and compensation with 30,000 euros to a client who had hired him to file a claim for patrimonial responsibility against the Ministry of Health of the Generalitat Valenciana for deficient performance derived from health care.
According to the facts of the court ruling, the lawyer and the client agreed on a budget for professional fees that also included the legal process, in case the claim was dismissed. The lawyer did not inform the client of him of the dismissal of your claim and, by the time he asked for explanations, the deadline for filing an appeal had already passed.
For these facts, the lawyer was sentenced for a crime of professional disloyalty of article 467.2 of the CP A crime that should be restricted, as explained by the Chamber in its judgment, to lawyers who are registered in the Bar Association as practitioners and in the case analyzed, the appellant was listed in the Bar Association of Valencia as a non-practicing member.
The sentence, a presentation by the president of the Chamber, Manuel Marchena, analyzes the nature of the crime of professional disloyalty and the jurisprudence of the Chamber to specify who holds the status of Lawyer.
The judgment explains that article 4.1 of the General Statute of the Legal Profession establishes that the practicing collegiate has the status of lawyer, which “constitutes a sine qua non assumption so that the law graduate can claim the status of professional lawyer that is awarded by its regulatory norm. In case there were any doubts, section 2 of the same precept adds that “…the name of lawyer corresponds exclusively to those who are incorporated into a Bar Association as practitioners”.
The Chamber adds that article 8 of the same Statute reinforces this idea, since when referring to the non-practicing collegiate He does not even use the word “Attorney”: “His character is regulated by addressing the requirements for the acquisition and loss of collegiate status. Indeed, in accordance with this precept, it is provided that “people who meet the requirements established in Law 34/2006, of October 30, to access a Bar Association may join the category of non-practicing members”. Note the undoubted interpretative value of the word “person” to refer to the collegiate -not the non-practicing Lawyer”.
The court argues that an interpretation that leads to criminalizing any act of professional disloyalty leads to excessive interpretation of article 467.2 of the Penal Code and is not reconciled with the need to reserve an application space for the sanctions regime provided for in the General Statute of the Legal Profession.
In the opinion of the Chamber, the criminal response to the damages caused to the entrusted interests imposes some restrictions and, therefore, for the disloyalty that causes this damage to reach criminal significance, “visible proximity to the judicial process will be essential, so that the professional performance of the Lawyer, even when it has not been developed in the process, is for the process. It is the proximity to that space of jurisdiction in which the rights to effective judicial protection and a process with all the guarantees -whose instrumental defense is held by the legal profession- are fully manifested”.
In the case analyzed, the court rules out the existence of a prior deception aimed at obtaining a profit and therefore concludes that the vto repair the damage caused must be the Civil (contractual breach of art.1544 of the Civil Code) or the requirement of disciplinary responsibility as a non-practicing collegiate of art. 140 of the General Statute of the Legal Profession.
