Legal professionals face a multitude of criminal risks in their daily activities. Just a few weeks ago, the entry into prison of the lawyer Antonia Magdaleno sentenced to four years for fraud to her old office was known.
On the one hand, and apart from the possible criminal activity of their clients, lawyers can swindle, misappropriate money or property, or unfairly harm their clients. In addition, with their advice, they can contribute to the commission of a crime.
The truth is that the lawyer, like any professional, is subject to compliance with criminal laws and deontological rules. To minimize the risk of incurring in a disciplinary or criminal offense, it is necessary that you remain alert and informed of those behaviors that may give rise to this type of responsibility. As stated by the professor of Criminal Law and lawyer Bernardo del Rosal, a good principle to avoid them is “to review, with some detail, the Code of Ethics for Spanish Lawyers.”
On your own
Most of the convictions of lawyers are for fraud and / or misappropriation, and occur when the lawyer takes money or property from his clients or third parties. In the case of fraud, deception is required, while to commit misappropriation it is enough to abuse the trust placed in the professional.
However, these criminal behaviors must be differentiated from the legitimate collection of their services or fees. The Supreme Court has set a line that separates them. The lawyer commits appropriation who endorses certain amounts delivered to defray the order (for example, for payment to other experts) or those received on behalf of the client once the case has been won. On the other hand, it is not a crime to collect from the advances received on account of their fees.
On the other hand, with his actions or omissions, the lawyer can, in turn, harm the interests of his client. These behaviors, even seriously reckless, can lead to the commission of a crime of professional disloyalty regulated in article 467 of the Penal Code. Both the defense of opposing interests without the consent of the affected party and the behaviors that produce a “manifest” damage are punished. It is a special crime because it can only be committed by lawyers or attorneys in the exercise of their work. It is appreciated, for example, if by not allocating the money given for a payment, the client’s assets are seized.
Other criminal figures specific to these professionals are obstruction of justice and disclosure of secrets.
Lawyers can also participate in the crime that their clients comment. The typical assumption is that of designing a corporate and tax framework that involves some economic crime, but it can occur in other areas.
Sometimes there is a fine line between professional advice and criminal action. As Del Rosal explains, generally, “a legal advisor or a lawyer is not the guarantor of preventing the commission of crimes by a client or by third parties.” As he points out, information on the various possible alternatives available to the client (what is not prohibited, what is prohibited and the consequences), or legal advice in the strict sense, are criminally irrelevant, as long as it remains neutral.
However, if the commission of a crime is specifically proposed or helped to commit it, the advisor will be implicated in a crime or will be criminally responsible. An example is the conviction of a lawyer who falsified the death certificate of his client to request the extinction of his criminal responsibility.
However, there is an area in which the lawyer does have a specific duty to monitor and report his client. Specifically, in the prevention of money laundering. Professionals who do not disclose these actions face an administrative penalty and even a criminal conviction if they contributed to the operation.
To avoid risky behavior, Del Rosal recommends advisers and lawyers not to exceed “the limits and standards of our professional functions, no matter how much the client presses for it.” The professor also advises that they be very cautious with the information provided, especially with the advice on action that is offered. In case of doubt, he adds, “it is always better to ask fellow criminals and pay attention to them.”
- Economic compensation. The civil route is commonly used by clients dissatisfied with the performance of their lawyers. Lawsuits to obtain financial compensation are usually filed for issues such as bad professional advice, filing documents after the deadline, or failure to appeal a theoretically won litigation. In all of these cases, the lawyer is accused of causing them financial damage by negligent behavior, but the courts do not always appreciate this malpractice.
- Millionaire sentence. One of the most serious sentences for a lawyer in civil liability matters was the one handed down by the Provincial Court of Madrid in February 2019. The court ordered a lawyer and his insurer to pay compensation of more than three million euros for having allowed the term to appeal to the Supreme Court a matter about the fair price of an expropriated property. Taking into account the criteria of the high court, says the Hearing, “the chances of success were very high, and even practically certain.”
- Obstinacy. Listening to the client does not always exempt the professional from responsibility. This is the case of a lawyer who was convicted of insisting on an impossible procedure to win. The Badajoz Provincial Court forced him to pay his old client almost 29,000 euros for not warning him of the obvious risk of failure.