Lawyers Suing Lawyers
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.
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”.
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What is your opinion of any Spanish Law firm that would simply take their clients monies but never fully represented them, nor looked after their clients interests?
In my opinion there is such a law firm in Spain (that was recommended by MRI).
Myself and a large group of disgruntled clients will be filing shortly, alongside another case concerning MRI.
Hi, I appreciate that it will not be a pleasant experience to prosecute a “colleague” however, where does a person go for justice if the legal practitioners are not willing to act on their behalf ?
As a matter of interest how would you describe the actions of our original Lawyer…..
1) He failed to act professionally and ensure that we were covered by the all important Bank Guarantee, infact it was never brought to our attention regarding the requirements of this vital document.
2) He failed to act professionaly and ensure that a hard copy of the Planning Consent was attached to the back of the purchasing contract, there was never any Planning Consent consequently our property was never built.
3) He failed to ensure the Purchase Contract included the details of the Bank or the Account details of the “cuenta especial” into which our money should have been deposited.
4) He failed to point out that there were clauses in the Contract which would have allowed us to cancel, and obtain a refund, if the Planning Consent was not obtained within 6 months.
5) He also allowed a clause to be in the Contract, stating “that we would get a Bank Guarantee after obtaining Planning Consent”, I understood that the Bank Guarantee should have been freely provided without any conditions.
6) He failed to give us any information regarding the progress or as in our case the lack of progress of our property.
7) He failed to answer any of my e-mails.
8) He also charged us, in advance, the sum of 1041.74 Euros for failing to act in our best interest, failing to carry out all the relevant checks and failing to ensure that our money was protected at all times in accordance with LEY57/68.
9) Lastly, in our case, we paid our property deposits to our Lawyer and he forwarded the funds to the Developer without securing the Bank Guarantee and without establishing that the developers account to which he is sending the funds, complied with the strict requirements of LEY57/68, which means the lawyer may be neglegent and guilty of acting with a lack of due diligence. Does it appear that we may have a right to make a claim to the lawyers Legal Indemnity Insurance, for the loss of our deposit.
Norman,
I think that we may have something in common.
Without exaggeration I can confirm that there are around 200 claimants to date(but this figure may well increase day to day),that will shortly be filing a suit against [COMPANY NAME REMOVED], as well as MRI (or rather the past and present directors of MRI).
If you have been affected by any of the above then you can contact me-
micheleanorcup@hotmail.co.uk
Michele, there are certainly grounds to act against lawyers that acted is the manner you have described. Current case law deals with instances of negligence on a case by case basis and it is this analysis which will determine the extent of the wrongdoing.
Norman, I would say that out of all the points you have listed, 2) and 9) are definitive in establishing a scenario of liability, as 2) on its own would not be if 9) was in place. In summary, this whole drama of off-plan fiascos could and should have been averted if the right measures were implemented.
@Antonio Flores
Thankyou Antonio,
Your legal opinion clarifys the issue for 200 plaintiffs.
Although I have no legal background I am pretty certain that the court will take into consideration the amount of cases filed, and we will also prove beyond doubt that they set up different companies within their network.
As a matter of interest, the law firm that we intend to sue was also a director of one of MRI’S intricate companies, this cannot do him any favours and in my opinion could ruin his reputation when all of this comes out in court.
We will not let this go, we are on a mission for justice.
Antonio, Thank you for your reply however regarding the 9 points that I raised, could you explain why you have disregarded the following :-
1) If the Spanish lawyer is my legal representative then surely it is his responsibility to inform me about this Spanish legal Document ?
3) I believed that under LEY57/68 it is a requirement to include the “Name of the Banking Institution or Savings Bank and details of the account where the deposit funds will be held as a result of the celebrated contract”
4)and 5) Is this advice not part of the contract when we employed the lawyer ?
6)and 7) I would have thought was common courtesy.
Lastly what you say in summary, I concur and that is why I employed a Spanish Lawyer to implement all the right measures.???
Hello Norman,
In my opinion, a lawyer not advising you that there is such requirement is superfluous if he has obtained such document. If he failed to advise AND get such document, I believe there are grounds to contemplate an action, regardless of other considerations.
Generally, Courts will need that you obtain a ruling against a property developer, with a favourable result but no possibility to obtain restitution, given the lack of bank guarantee. The case of Aifos development would be an example.
Antonio, Thank you for your reply, and from what you have said I was wondering if you could suggest our next step bearing in mind the following…..
A) This Lawyer Failed to act professionaly and ensure that a hard copy of the Planning Consent was attached to the back of the purchasing contract, there was never any Planning Consent consequently our property was never built.
B) We were never informed or advised about a Bank Guarantee at any time, and never received such a document.
C) We paid our property deposits to our Lawyer and he forwarded the funds to the Developer without securing the Bank Guarantee and without establishing that the developers account to which he is sending the funds, complied with the strict requirements of LEY57/68, which means the lawyer may be neglegent and guilty of acting with a lack of due diligence.
D) We have already obtained a ruling against AIFOS, in January 2009.
Hi. Much more of a minor issue than discussed above but relevant to needing a lawyer to sue another lawyer.
I have just received a demand for payment of rates for a property that I sold at the start of 2010.
Apparently, legally, as the owner of the property at the start of the year I am legally responsible for this payment. However, as this is accepted to be manifestly unfair, the local custom is for the amount to be apportioned, as you would expect.
Unfortunately, my lawyer failed to tell me the legal position or ensure that the Buyer would pay his share.
The Buyer is now threatening to sue me if I do not pay and my lawyer refuses to accept any liability.
I understand that the costs of suing the lawyer far outweigh the amount of the claim, around 550 euros of which my share should be 10 euros,so that there is no point in suing even though, presumably, I can claim costs as well.
Are any of these lawyers required to be Licensed?
A complaint to a professional body that could assess the situation would be far better and cheaper than going to Court.
Be warned, this could happen to anyone and apparently the lawyer can just walk away and leave you with the bill.
Hi Mike,
The legal position is as you have depicted, in respect of the duty to pay this sum. However, I am not sure that he could he held responsible for not advising on a matter that, even though may be altered by application of custom, is in effect correct.
I would doubt that the Law Society would take an interest in this matter because at the end of the day, the law has been applied and in fact, the lawyer could claim that the buyer refused to agree on anything different from what the law envisages.
Hi Antonio,
Many thanks for your response.
Surely it is not unreasonable, especially when you clearly have no local knowledge of the legal position, to expect to be informed by your owm lawyer of a law like this so that you have the option of at least attempting to negotiate an agreement with the Buyer to pay his share. Especially so when you are completing at the start of the year when, as in this case, the liability will result in a years free rates for the buyer. A gift in this case of around 550 euros.
I attended the Notary personally to complete this matter and this would have been easy to have raised this matter at that time.
My lawyer does not dispute any of the facts and seems to be relying on the fact that, on completion, the Buyer ‘never said that he would not pay’ his share. Even had the nerve ‘to insist’ that I pay this money.
I appreciate that it is different in Spain but, in the uk, I am sure that the lawyer would be held liable for this kind of error both for negligence and, I suspect, breach of trust/duty of care both by the Courts and also the Law Society.
My concern now is whether I could end up with an embargo on my Spanish Bank Account and/or a charge on my new house.
Also I am being threatened with legal proceedings by the Buyer.
All of this resulting from the failure by my lawyer who seems to be able to just walk away without any liability and leave me to sort out the mess.
Hi Antonio,
Just to clarify:
I live in the uk but still have a holiday home in Spain
Although the rates invoice in question is for 2010, the demand for payment was not sent to my lawyer until Jan 2011. They forwarded it to the Buyers lawyer for payment and heard nothing until now when they received a demand form the Buyer for payment and a threat of legal proceedings.
Dear Mr Flores,
4,5 years after we declared our estate to the Spanish inheritance tax office they decided that the value was too low. Our laywer said he felt ashamed by his government and actually reffered to them as crooks. That same laywer offered to “help” us solve the problem. He claimed that the standard fee for any Spanish laywer would be 10% of whatever he could lower the claim by. In the end the tax claim was reduced from € 200.000 to € 40.000 (somewhat confirming that he was right on the ITO being crooks). In order for him to reduce the claim he wrote two letters and made a few phonecalls. The bill € 18.000 incl. VAT !!! Is this really standard practice in Spain? I appreciate your thoughts on this matter.
kind regards,
Patrick
Patrick,
The value attributed to the work carried out by a legal professional can be based on how much time and effort he puts into a matter, or the result he achieves for the client. In both instances it is crucial to have the terms and conditions agreed to prior to starting the work, to avoid confusions.
In your case, it is important to know that the facts of the case are correct, in other words, that the Tax Office did in fact challenge the first tax declaration, and once this is established, if the lawyers work was indeed 2 letters and a phone call (which incidentally, sounds like rather strange to me, especially the telephone calls).
Provided there is no agreement to the effect, or it is not customary to charge in a certain manner, the Law Society will determine the fees a lawyer is entitled to.
Best regards
Dear Antonio
I am one of the many people claiming back deposit plus interest from the El Pinet (M19) fiasco. I am becoming increasingly frustrated about the length of time the banks / courts are taking to deal with our case. Is there nothing we can do to speed up proceedings? We made our initial deposit in 2004 so surely we should have had a resolution by now?
Regards
Jon
Dear Mr Flores,
2 years ago our solicitor advised us to stop paying our mortgage to a Spanish bank. The bank had given us a mortgage on an illegal build in 2006 (not that we knew this when we bought it). We moved back to the UK and continued paying the mortgage for 4 and a half years in the vain hope that it would be legalised and sold with a clear conscience. As costs of living had risen in the UK, we were struggling with repaying the mortgage and renegotiated with the bank and moved to an interest only mortgage for a year. We found this impossible too especially with no legal resolution in sight and so we contacted a UK/Spanish firm to manage our extraction from the mortgage. The keys were sent to Spain over a year and a half ago to the law firm but the bank valuation was only completed this year in June and the bank has decided that we are in negative equity by 20,000 euros. So will not accept dacion en pago, but will give a personal loan for this amount which we cannot service. We rent in the UK, have no assets and are in debt here. Our solicitors have advised us to accept the offer by the bank but has the solicitor been negligent in its advice to us? Also, did the bank fail in it’s duty of care to us by granting us a mortgage in the first place and not advising us that the property was illegal?
Thanks in anticipation of your answer