Article 467 Spanish Criminal Code: Conflict of Interest and Professional Negligence by Lawyers

Article 467 of the Spanish Criminal Code contains two distinct offences. The first punishes the lawyer or court agent who, having advised, defended or represented a person, acts in the same matter for someone with opposing interests without that person’s consent. The second punishes the lawyer or court agent who, by act or omission, manifestly harms the interests entrusted to him, and it provides expressly for the negligent form with a reduced penalty. Both carry professional disqualification, which is the consequence that matters to a practitioner.

Wording of Article 467 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a lawyer or court agent, in the exercise of the profession.
2. For the first offence, prior advice, defence or representation of a person, and subsequent action in the same matter for a party with opposing interests, without consent.
3. For the second, harm to the interests entrusted that is manifest, that is evident and of substance, not a debatable strategic choice.
4. Intent, or gross negligence in the case of the final paragraph, which excludes ordinary professional error.

Defence strategy

The matter is not the same. The conflict offence requires action in the same matter. Advising two clients in related but distinct proceedings, or acting against a former client in an unconnected matter, does not satisfy the element, however uncomfortable it may be professionally. The defence delimits the object of each engagement with the retainer letters and the pleadings filed.

Consent and its proof. Consent excludes the offence, and the professional rules contemplate it for related engagements. Where it was given, whether in writing or by conduct, the defence produces it. This is also the reason why any engagement touching a former client should be documented at the outset, since the burden of establishing consent falls in practice on the practitioner.

Manifest harm distinguished from strategic choice. The second offence requires harm that is manifest. Losing a case, choosing not to call a witness, advising a plea or missing an argument that another lawyer would have taken are matters of professional judgment and, where they cause loss, of civil liability. The article reaches conduct such as allowing a limitation period to expire or failing to lodge an appeal that had been instructed. The defence distinguishes the two categories expressly, with expert evidence on professional standards where necessary.

Parallel professional and civil proceedings. These matters ordinarily proceed on three fronts at once: the criminal complaint, the disciplinary file before the Bar and the civil claim for damages. The positions taken in each must be consistent, and an admission in the disciplinary sphere may be used in the criminal case, so the three are conducted as a single strategy from the first day.

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This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.