Antonio Flores’ Blog

Recent enactment of legislative reforms that requires claimants to pay court filing fees when “making use of the public service of the administration of justice” has forced lawyers, already under severe stress due to the still struggling economy, to downsize their fee aspirations. In fact, even to the point of having to waive the retainer to allow a case -or an appeal- to go forward, on a no-win no-pay basis.

But what happens when one loses a case? And if no agreement was struck with the lawyer?

The following notes should help understand the legal fees’ system:

a)      The Spanish Solicitors’ Code of Practice establishes an absolute freedom to fix legal fees, pursuant to a Supreme Court ruling that nullified the prohibition of conditional fees.

b)      Where no agreement is struck clients needs to be aware that by default, they will fall under the legal fee guidelines approved by the provincial Bar Association, and these can be pretty heft (a case worth €300k will attract €25k in fees, only in the first instance).

c)       Equally, where a case is lost and the Court awards costs i.e. pay the other party’s legal fees, they will too be calculated by reference to the respective Bar Association, in any case.

d)      If scenarios b) and c) happen to coincide, an unsuspecting claimant could find that a case relating to a property worth say €300k could actually cost him €50k!

e)      On property conveyancing, 1% of the purchase price is still pretty standard, in spite of the crisis; the reason for this is perhaps to do with the hefty quantum of a potential claim i.e. up to the value of the property and, notably, the very the lengthy mandatory 15-year liability term to validly bringing a claim against a conveyancing lawyer.

The above conclusions make it very advisable prior to filing a case, and even responding to a claim filed against one, to request from the acting lawyer for an appraisal of the likely legal costs should the case be lost as, very often, these are ignored ab initio. And naturally, have one’s own fees agreed and ratified by signing a letter of engagement or letter of instruction.

Antonio Flores Legal Practise Legal fees Spain, No-Win No Fee Spain, spanish lawyers, Spanish legal practice

Recording of calls or conversations is a matter that is dealt with differently depending on the country you are in. For example, Germany is a is a two-party consent state—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence.

In Spain on the contrary, calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, and that is the general rule.

According to the Spanish Constitutional Tribunal, “where a person voluntarily divulges his opinions o secrets to a listener he already knows that he strips from his intimacies and transmits them, more or less trustingly, to whomever is listening who will then be able to use its content without incurring in any juridical reproach.”

It then adds that

The recording of a conversation between two or more people which one wishes to conserve to have a reliable acknowledgement of what was said does not amount to an invasion of privacy inasmuch as that person has accepted voluntarily to have that conversation and is responsible of the expressions used and the content of the conversation.

But the matter is not settled there: the 1999 Data Protection Act considers that voice and images are personal data that subject to a general regime of data protection and thus, handling such data would require the consent of any of the participants to a conversation. Alas, the Act does makes an exception to avoid clashing with the earlier Constitutional Tribunal ruling:

Consent will not be required where personal data is gathered by a party to a contract or pre-contract in a business, employment or administrative relationship and is required for the maintenance or enforcement of such relationship; also, where the treatment of such data has the aim of satisfying a legitimate interest pursued by the person party to the recording or a third party whom is given the recording. 

In conclusion, anyone should accept that any conversation held with another person can be recorded legally and used in Court, transferred to a third party or even published on the web. And that is it: there is no possible discussion on wire-tapping third party conversations without judicial consent, a criminal offence punishable with up to 4 years imprisonment.

Antonio Flores Legal Practise REcording of Conversation Spain, Telephone conversation recordings Court, Validity Evidence Spain Recorded Calls, Wire tapping Spain

It was not that long ago that Jeffrey Archer was convicted for perjury and perverting the course of justice for lying in a libel case, when disputing allegations that he had paid for sex.

Archer had made two mistakes:

1. To think that lying in Court was a preferable option than to admit he had performed -in the words of Justice Caulfield- ‘cold, unloving, rubber-insulated sex in a seedy hotel’.
2. To lie in a UK Court, as a plaintiff.

Because had Mr. Archer’s strayed in Spain, or rather had he chosen to lie in a Spanish Court, no conviction could have ever been passed since, unlike most common-law systems, Spanish laws do not contemplate perjury as a criminal offence. In fact, quite the contrary: claimants and defendants are entitled, in fact expected, to lie in Court.

The key legal precept is article 24.2 of the Spanish Constitution that states, inter alia, the following: “…Likewise, all persons have the right to…no make self-incriminating statements…to not declare themselves guilty.”

But make no mistake as to who can lie in Court: witnesses will be prosecuted if they do so for ‘false testimony’ (falso testimonio), a charge that carries prison terms. Also, you can be charged with falsely reporting a crime if you employ deceit (denuncia falsa) and likewise, be convicted of a crime.

In everyday judicial practice, the above distinction can be easily noted: claimants and defendants are not required to give their statements under oath whereas witnesses will have been previously sworn (warned too).

In my opinion, creating two types of liars (those who are allowed to and those who aren’t) causes Court cases to become protracted because defendants will be less prone to admit liability, even if wrongdoing is obvious, just because there are no legal consequences to prevaricating.

A recently example about this relates to two Luxembourg-based bankers who were deposed in Court: they lied shamelessly about their involvement in an Equity Release case and so did the representative for the bank, who was close to denying that their own publicity that was no longer available (yet still traceable via www.waybackmachine.com) was ever produced. I doubt these bankers would have chosen to mislead if they were tried in English Courts.

Antonio Flores Legal Practise Danske Bank Equity Release, False TEstimony, Perjury, spanish courts

It is a well-known fact that under English laws, once legal proceedings become active, it is a criminal offence for media organizations to broadcast material which would create a substantial risk of serious prejudice to the proceedings. Statutory contempt law, also known as ‘sub iudice’ rules, come into force once a person is arrested, a warrant for arrest is issued, a summons has been issued, or a person has been charged, and they remain so until such time as the accused has been acquitted or convicted.

In Spain, such rules don’t exist in respect to the press save for when a Court specifically orders the proceedings to be ‘secret’ (secreto de sumario) but then, it is a general ban on any person or organization privy to such information. Outside of this exception, although parties to the case are supposed to treat data confidentially (fines of between €1,5 to €15 apply to lawyers breaching this), there is almost free rein for the press to publish details of pretty much any case ventilated through Spanish Courts, in the investigation phase (as the trial is officially public), even if there is a real danger of prejudging a case or its legal issues; no doubt the consequence of many decades of fierce censorship under Franco’s ruling.

Recently, the investigating Judge José Castro said the following in respect of the magnitude of the leaks on the ‘Urdangarin’ case (King Juan Carlos’ son in law): “A secret shared by so many people makes it practically impossible to keep with scrupulous confidentiality”. In his writ, the Magistrate explained that leaks could have come from lawyers, procurators, police forces, prosecutors or civil servants, among others, and argued that it would be a waste of public money to try to find the culprit, if this was at all possible. The press is not mentioned here, the reason being that they are expected -almost obliged- to publish any information deemed in the public interest and this is rarely questioned.  In 2009, the State General Prosecutor concluded that ‘leaks are inevitable’.

In 2004, the Communications Department of the General Council of Judiciary issued a protocol in respect to the type of information that could be released by the Courts, when a case was in the investigation phase, but this has never gone beyond being a mere ‘recommendation’.

Finally, the Spanish Constitution Tribunal has, on many occasions, stressed the importance of freedom of communication and expression as a pillar of democracy citing, insofar as journalism is concerned, a paragraph of the famous European Court of Human Rights Goodwin vs. United Kingdom case:

“If journalists are forced to reveal their sources the role of the press as public watchdog could be seriously undermined because of the chilling effect that such disclosure would have on the free flow of information.”

Antonio Flores Legal Practise Court cases Spain, Spanish Press, Sub Iudice Rules Spain

It was not until 2008, when the Spanish Supreme Court got its hands on this controversial matter that Spanish lawyers were at liberty to agree on pure conditional fee arrangements, better known as no-win no-fee, or “pactum de quota litis“. Because up until then, it was actually forbidden for lawyers in Spain to work freely in pursuit of a favourable result for their client, upon which they would share the proceeds of the recovery.

This prohibition was removed by the Tribunal for the Defense of Free Competition, who established that any rule preventing a client and a lawyer from freely fixing their fees was a restraint to free competition, declaring any regulation to the contrary null and void, at which point they also fined the Spanish Law Society with €180,000. On appeal, the National Audience revoked this decision but, on further appeal to the Supreme Court, the original ruling was upheld (though the fine removed).

Detractors of this arrangement consider that these types of agreements do not guarantee civil justice and that legal professionals “cherry pick” only the strongest claims, which are most likely to succeed. In sum, that they make lawyers party to the claim (conflict of interest), diverting them their ‘statutory’ functions i.e. serenity of judgment, independence and dignity, collaboration with justice and moral integrity, all of them alien to the concept of “ambulance chaser”, a term that came in handy to shame campaigners of the conditional fee agreement.

Supporters claim that this system allows people with few financial means access to the court which otherwise, could not afford. In this context, no win no fee also provides significant motivation to the lawyer to work diligently on the client’s case whereas, if the fees are fixed, it would makes little economic difference for that lawyer whether the client has a successful outcome to the litigation. Finally, it is also argued that the number of speculative, frivolous or unmeritorious cases may be reduced.

Arguments for and against are equally respectable but, in today’s socio-economic world, it would seem daft to uphold restraints to private agreements between clients and their lawyers, in the context of free competition, even in spite of the semi-prohibition of the Charter of Core Principles of the European Legal-Profession.

Antonio Flores Legal Practise Ambulance Chasers Spain, No-Win No Fee Spain, spanish lawyers, Tribunal for the Defense of Free Competition

Targobank, the last bank still willing to open bank accounts to Iranian investors, has followed the trend of all other Spanish banks and placed a blanket ban on any Iranian national who, for the most part, arrive in the country to buy Spanish property.

These ordinary investors, attracted by the comparatively low prices of Spanish property, are seeking to invest in the country and that that effect, are granted tourist visas (some apply and attain permanent residency) by the Spanish Consulate in Tehran, N.I.E. numbers by district Police Stations, property deeds by Notary Publics and “empadronamiento” certificates by Town Halls and yet are, irritatingly, snubbed by Spanish banks on the pretext that laws don’t allow them to do so.

So whilst sanctions against Iran have been tightened and these have been particularly aggressively enforced in the U.S. and Canada and by contagion, those countries with closer links to the superpower, still today no trace of where within those sanctions lies the prohibition of merely opening of a bank account for an Iranian traumatologist, pistachio exporter or car dealer who wishes to buy a property in Marbella, Madrid or Gran Canaria.

This has arguably created a view where anything remotely related to Iran is often viewed as toxic and problematic and thus leaves lawyers, property developers and real estate agents to all but “abandon” business with the numerous Iranians that wish to invest in Spain.

Alas, on closer inspection it appears there is no such blanket ban in Spain because there is no specific regulation by the Bank of Spain, the Ministry of Interior or that of Foreign Affairs to the effect of entitling banks to slam the door in the face of Iranian investors.

And yet when one meets with branch managers armed with the mandatory ‘Know Your Client’ detailed paperwork, excuses fly around: Iranians have been banned by the EU, bosses say it is not possible, the computer system blocks that particular nationality, our entity does not specialize on dealing with such nationals etc. etc. La Caixa, for instance, does request certain disclosures in respect to Iranians but they are not specifically banned from opening accounts…and yet they do so.

Sadly, it all boils down to Spanish financial institutions being terribly scared of retaliatory action by the U.S. Government and so prefer to drop certain foreign citizens as clients, even if they risk being reported to the Banco de España for arbitrarily, when not discriminatorily, refusing to open bank accounts to them.

Antonio Flores Legal Practise, Mortgages, Property ban on Iranian bank account, Iranian Investors Spain, Iranian SPain, Spain Banks Iran, spanish bank iran

Every Town Hall in Spain counts, within its municipal ordinances, with very specific rules on what is the maximum noise any person should have to put up with. These rules are pretty much standardized around the country and establish that they will be applicable, within the municipality, to any activity, installation or behaviour that generate noises or vibrations susceptible of producing a nuisance or damage to people or goods situated within its scope of influence.  

The decibel (db), which is the universal unit of sound measurement and is measured with a meter that registers sound pressure and displays these readings on a sound level scale, is crucial to establish whether any of the following produce illegal noises: your neighbour upstairs, his dog, someone’s car or motorbike in the vicinity, a pub, a basketball court and generally, any such activity that produces noises.

Spanish Town Halls pretty much follow the recommendations of the World Health Organization (WHO), which establish a maximum of 55 decibels during the day and 45 at night. Any activity that breaches these limitations will be causing a statutory noise nuisance, and it is then when the Town Halls have to act to stop it.

Who can be held responsible for illegal noises?

In the first instance, whoever causes it if the noise is illegal. Last May, 2 pub owners were sentenced to 4 years in prison by the Spanish Supreme Court for committing an acoustic environmental criminal offence. They had systematically disobeyed the Seville Town Hall’s orders to limit the noise to the point of ignoring the suspension of the activity. A psychologist expert witness diagnosis was categorical: the emotional and mental disorders that years of destructive noise levels where so severe that they could take years to cure.

If a Town Hall does not act, they then become responsible for not implementing its own laws; “El Copo” case is probably the most famous given that the Andalusian Supreme Court ordered the Velez Malaga Town Hall, recently, to compensate 18 neighbours with just over 5 million Euros for not taking action against Torre Del Mar pub owners whose businesses caused noises reported to be, in peak season, in excess of 120 decibels when the maximum legal was 30!

Antonio Flores Legal Practise noise pollution spain, noisy pets

The video below shows exactly how a summons in Spain is not be conducted: Jason Coglan, from JaCogLaw, personally notifies a criminal complaint filed by an American citizen against John Doust, one of the oldest serving fraudsters of the Costal Del Sol who is, unsurprisingly, a free (con)man.

But Jason’s intention is not to legally fulfill the service of summons, which he knows is a job that in Spain is exclusively reserved to the authorities, but to bridge a judicial system that is slow and ineffective when it comes to pursuing economic or financial crime, and get in front of this despicable man, ahead of the Spanish Police (crime reported to them in June) and the Courts (crime reported to them in May) who have, so far, done nothing except formally requesting the claimant to turn up in Court to confirm the claim.

So how should service of process be done in Spain, as well as any other formal or official notification? Below are what I consider the 10 most important notes on this subject:

In civil procedures, notifications or summons can be made:

1. By post, ensuring that there is certification of content and acknowledgement of receipt (typically called “burofax”).
2. Directly in Court, by the Court Secretary directly to the defendant or through the appointed Procurator.
3. In the address of the recipient or defendant, by issuing judicial summons directly to the defendant or, if he refuses to receive the Court decision or sign acknowledgement of the summons, he will warn the recipient that a copy of the document is at his disposal, in Court, and that with this formality he is understood to be legally notified.
4. If the recipient or defendant is not present, summons will be given to any employee, family member or person cohabiting with him (older than 14 years) who are present, or to the porter of the property or premises, if available, issuing a warning that the notification or summons is to be given to the recipient, if his location is known.
5. On the notice board: this is a special communication system that is used where all the above fail, and consist on a fiction of notification where the Court officer reads the content of the summons and is then published on the Courts notice board.
6. In the Official Gazette: this system entails publishing the summons on the notice board and also, in the Provincial Official Gazette and where the Court deems it necessary, in the Autonomous Region Official Gazette.
7. Where the recipient or defendant is not located, the civil procedure can go ahead and the ruling will be also notified formally, and where this is not possible, it will be published on the notice board, as above.
8. An adverse ruling (most of them will be) against a disappeared defendant can be challenged where he was not able to collect the summons due uninterrupted force majeure, even when he knew of the proceedings, or where he was unaware of the proceedings and the notification was made by judicial summons, or where he was unaware of the proceedings, the notification was made by publication in the notice board but he was in a different place from where he was living.
9. In criminal procedures, a defendant has more protection in that a trial cannot take place where the commission of the crime carries a penalty of more than 2 years imprisonment, or 6 years of another nature. But the most notable difference is that generally, depending on the seriousness of the charge, the defendant will be arrested and brought before the Judge, to be formally notified of the charges.
10. Where communications between private parties are concerned, there are several possibilities: Burofax, as explained in point 1, BuroTex , that allows notifications between private individuals to be carried out by mobile device text message (sms), Certimail, which is made by email sent by a Notary Public and not without controversy, even also by regular fax which, in spite of its evident weaknesses, was deemed by the Constitutional Tribunal to be valid in administrative proceedings where the defendant did not prove that the fax machine was not working well, that there was power cut-off or generally, any other provable excuse of non-delivery of the content.

Antonio Flores Legal Practise, Litigation Judicial Notifications, Service of process, subpoena, summons in spain

Since getting involved in legal action pertaining to unfinished-or-never-started-developments (e.g. by Ochando S.A., Promociones Eurohouse S.L. and Grupo San José Construcciones e Inversiones S.A.), one thing that I have found rather incomprehensible, from the perspective of a law firm actively pursuing the return of off-plan deposits, which should have been placed “in escrow” or backed by a bank guarantee, is the inconsistent and conflicting information on points of law that is being circulated by all manner of participants (lawyers, developers, group actions, banks, internet forums etc.).

But aside from the many interpretations, one can give to whether a credit should be ordinary, privileged or none at all, within the receivership/insolvency proceedings, or whether you should have terminated your contract on, before or after the developer did some or other action through the mercantile courts (all of which baffles me significantly), or that you are, or aren’t, or perhaps may be entitled to 40, 50 or 60% of your deposit in a number of years to come, what is clear to me is one thing: a consumer’s deposit for a property in, say, La Fortuna Golf is not and never to be used to pay for a topographical surveyor’s outstanding invoice on, say, Residencial San Pedro del Pinatar, looking after the salary of some night guard at Residencial San Pedro or more annoyingly, a plumber to fix some piping problem at the mansion of a company director.

Property developing companies have two options when handling off-plan buyers’ deposits: either keeping them in safe custody and not use them save for the needs of the specific development, and if not used return them fully, or provide a bank guarantee: there are no more options. Dragging bona fide consumers through a receivership procedure alongside electrical suppliers, cement subcontractors, real estate agents, the Spanish Social Security or the Spanish Inland Revenue seems not the right thing to do, particularly where it is the deposits of off-plan buyers who are earmarked to satisfy the debt of all others, related or not to the development in question.

Current case law does not envisage any other use for those funds, certainly not have them used for purposes not allowed to by law. Which means that these developers should be, in my opinion, encouraging, guiding and assisting off-plan property buyers in cashing bank guarantees to precisely avoid the aggravation of their already difficult situation, i.e. the transformation of these civil disputes (contractual default) to an action for criminal swindle and misappropriation, which entails serving time, particularly on those developments where nothing has been built (on others with a certain percentage built, advice would have to be on a case-by-case basis).

Antonio Flores Legal Practise, Litigation Grupo San José Construcciones e Inversiones S.A, La Fortuna Golf, litigation against spanish developers, Ochando Golf, Promociones Eurohouse, Residencial San Pedro del Pinatar

It is every so often that I get enquiries from disgruntled former clients of colleagues, claiming that their chances of recovery, on occasion of a legal dispute or in a failed property transaction have been seriously diminished or even thwarted by, in their view, negligence of the acting lawyer. And whenever the option to sue another lawyer is raised by a third participant in the meeting (it tends to be a friend, acting as the Good Samaritan for the occasion), the victim of the suggested negligence tends to raise all kinds of objections, arguing that “lawyers tend to stick up for each other and they will avoid filing lawsuits against fellow practitioners..”

Admittedly, this perception is widely spread among foreign people, further aggravated when they throw in other elements of collusion (lack of determination or bias, the logic idea that other lawyers are naturally antagonistic toward lawyers who sue lawyers, corrupt judges, unknown timescales, costs etc.).

Good lawyers always want to police their profession, they believe that lawyers who have damaged their clients should be held accountable. Warren Trazenfeld

The reality is that, unlike in the US, in Spain we don’t have lawyers specialized in suing other lawyers. It is in fact a field of the law that is almost unknown, and you will normally find that it takes a lawyer with a very tough skin to feel comfortable in this practice. Yet there are now more and more articles devoted to legal malpractice being published, quoting relevant rulings and other interesting material on the issue and astonishingly, when you make a search on one of many legal libraries on use, using the words “abogado negligencia”, the result shows a whopping… 5221 court rulings!

So it might be that we need to embrace the motto of a known Miami-based malpractice lawyer, Warren Trazenfeld, who some years back said: “Good lawyers always want to police their profession, they believe that lawyers who have damaged their clients should be held accountable”.

Links

• La responsabilidad civil de abogados en la jurisprudencia del Tribunal Supremo (PDF)

Antonio Flores Legal Practise Malpractice