2023-06-07 08:32:46
When a lawyer is appointed ex officio, he must defend the interests of his client until the end of his assignment or, where appropriate, be replaced by another lawyer appointed by his professional association. There is no other option or excuse.
This is clear from a recent judgment of the Superior Court of Justice of Madrid (whose text can be consulted here), which confirms the sanction of a warning against a lawyer who, unjustifiably, failed to file the divorce petition that his client had requested. The jurist simply stopped acting, waiting for his replacement by another ex officio.
Complexity
According to the proven facts of the sentence, the professional had been appointed free of charge to assist a woman, whom he made an appointment with one day in April 2019. The client informed him of her decision to divorce. She was de facto separated from her husband, adoptive father of her nine-year-old son and from whom, presumably, she was mistreated.
During the following months, the represented unsuccessfully called the office, where they told her that “they would contact her.” In September, given the lack of news from her, she went to the firm in person “but they did not receive her.” In November she got another appointment, “receiving her very angry lawyer.” He justified her delay due to the complexity of the case, “by asking (the client) that the father not see the child and, at the same time, alimony.” The lawyer ended the meeting indicating that he “would call her to see her lawsuit, but that he had nothing else to talk about with her,” according to the client’s version.
The now sanctioned, however, did not admit having committed to file for divorce. Apparently, he was in favor of claiming the guardianship and custody of the minor, and even contesting the parentage. Given the lack of expectations of success in the courts and the difficulty of the matter, he advised his client to request a new legal counsel. From that moment, he did not perform any performance.
In the same month of November, the victim requested a new lawyer and filed a complaint. After detecting “indications of disciplinary responsibility”, the board of the bar association initiated a file and warned the person under investigation for violating the code of ethics and the rules of the ex officio shift. The lawyer filed an appeal against the resolution, which was finally confirmed.
Next, the sanctioned party exhausted the administrative route and opted for the judicial one. In June 2022, the contentious-administrative court number 7 of Madrid confirmed the punishment for committing a minor infraction. After appealing the sentence, the autonomous court has ruled in the same direction.
inexcusable order
The magistrates recall that the rules governing the right to free legal assistance constitute “an exception to the general rule of the lease of legal services.” A private lawyer, before a private client, can decline the commission if he is not satisfied with the indications, suggestions or claims of his client.
However, in the ex officio turn “the rules are more rigid”, reasons the sentence. The free legal assistance law provides that, if you wish to leave, the lawyer can raise the “unsustainability of the object of the appointment.” In these cases, the professional association, after a report from the public prosecutor, will decide whether or not such designation is sustainable. Therefore, if this route is not chosen, the lawyer “will be obliged to assume the defense.”
In short, the appellant “was obliged to attend to the order (provide the divorce petition)” until the moment in which the college appointed a substitute. And the resolution concludes: in addition to the aforementioned incident, which was not promoted, the only “libertarian act” of the obligation to attend to the order would be “the appointment of another professional to fulfill it.” Until that moment, the filer could not excuse himself from treating him, so the sanction imposed can only be confirmed.
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