According to article 542 of the Organic Law of the Judiciary, the lawyer's function is the professional exercise of directing and defending in all kinds of legal proceedings and providing legal advice and counsel.
Today, there is little doubt that the legislator, based on custom and aligned with international comparative legal systems, grants lawyers the exclusive and excluding function of professionally providing legal advice and defending the interests of the parties seeking such assistance.
Sector-specific regulatory development has echoed this, considering article 9.1 of the General Statute of the Legal Profession which defines lawyers as those who (i) are members of a Spanish Bar Association, (ii) meet the required qualifications, and (iii) professionally engage in advising, conciliation, and defense of others' legal interests, whether public or private.
Given that law practice is a free and independent profession requiring an academic qualification, the Penal Code in article 403 penalizes under the offense of Professional Intrusion those actions typical of a lawyer performed by individuals lacking a recognized degree in Spain.
The offense of intrusion originates from the Law of Las Partidas (Partida VII, Title VIII, maintained in the Novísima Recopilación), which aimed to repress actions of medical professionals by non-professionals during that era.
Traditionally associated with the healthcare sector, though seemingly rare and implausible, cases of professional intrusion in legal-economic traffic do appear: lawyers without proper credentials defending or advising clients.
Hence the reference to the popular saying "in the house of the blacksmith, a wooden knife" (or in its English equivalent, "The shoemaker's son always goes barefoot"), a paradox cautioning those who neglect activities that sustain their livelihood internally.
Aside from damaging the reputation of the legal profession (sometimes already disregarded by certain social sectors), these actions clearly harm clients who hire legal advisory services and entrust their problems and interests to a fake lawyer.
It's not merely a matter of private rights infringement; the Constitutional Court has deemed the protected legal interest to be that of the general public, which, relying on a state-issued title, places trust in handling any matters at hand.
Thus, the offense of Professional Intrusion is included as a state ius puniendi capability, as merely protecting private individuals wouldn’t suffice under the principle of ultima ratio in criminal law.
The Constitutional Court, in its 111/1993 ruling laying the groundwork for Intrusion, notes that "professional, private, or collegiate interests, though legitimate and respectable, are insufficient on their own to justify the threat of criminal sanction."
Application of the penal code’s Professional Intrusion offense requires two conditions: (i) performing acts typical of a profession, (ii) without possessing the corresponding academic title. The article states:
"Anyone who performs acts typical of a profession without possessing the corresponding academic title issued or recognized in Spain according to current legislation shall be liable to a fine of twelve to twenty-four months. If the professional activity performed requires an official title certifying the necessary qualifications and legal entitlement for its exercise, and such title is not held, a fine of six to twelve months shall be imposed."
The question remains, can this criminal offense be applied broadly for failure to observe other administrative duties, or should it strictly pertain to the lack of a professional title?
The Provincial Court of Madrid addresses this in Auto number 983/2014 of December 4, resolving a complaint filed by the Illustrious Bar Association of Madrid against a lawyer possessing the qualifications to practice law but who was temporarily inactive in the Bar.
The Bar Association sought the conviction of the accused for Professional Intrusion under article 544 of the Organic Law of the Judiciary, which mandates bar membership as a requirement for practicing law.
However, the Provincial Court requires more than mere administrative oversight to incur criminal liability.
Referring to the previous Penal Code of 1973, which punished as a minor offense with fines ranging from 200 to 2000 pesetas those with a degree or qualification who practiced without being registered with the respective official association, provided such registration was required by regulations, the court notes that the current Penal Code no longer includes this minor offense, thus penal liability only arises when acts typical of a lawyer are performed without the required professional title.
Specifically, the Provincial Court indicates that criminal liability requires conduct indicating possession of a qualification not actually held, as this is more detrimental to public trust than mere administrative or collegial non-compliance.
This is without prejudice to administrative repercussions for performing acts typical of a lawyer without being a member of any Bar Association or, if a member, failing to pay required dues.
In this regard, article 84 h) of the General Statute of the Legal Profession categorizes as a serious offense "Professional Intrusion and its concealment," potentially resulting in suspension from practicing law for a period exceeding three months but not exceeding two years.
Therefore, acting as a lawyer without being a member of the Bar may not constitute a criminal offense but is certainly a matter of lesser consequence within disciplinary deontology.
A different issue arises: what qualifies as a title to practice law? During the university era of the licensure system, obtaining such a title enabled one to practice law professionally. However, as the reader is aware, things have changed with the Bologna Process and the Spanish university project seeking European harmonization.
The enactment of Law 34/2006, on access to the professions of Lawyer and Court Attorney, requires those with a degree to complete specialized training to obtain the professional title of lawyer: the renowned Master's in Law.
In this case, a law graduate must meet this requirement and successfully complete the Master's in Law to obtain the qualification to practice law.
So, would a law graduate who has not completed the Master's in Law be guilty of Professional Intrusion?
Given the short period since the law's implementation (only three years with the Master's in Law), jurisprudence has not yet delved into this issue.
Nevertheless, this party believes that practicing law without completing the required Master's in Law should indeed constitute Professional Intrusion, as this qualification is necessary to obtain the professional title, a document which, according to the Provincial Court of Madrid, acknowledges the sufficiency of an individual to practice a specific profession.
Borja García Rato | Director of the Commercial, Contractual, and Corporate Area at Summonsb.garciarato@summons.es
Source: Legal today.
http://www.legaltoday.com/opinion/articulos-de-opinion/el-intrusismo-profesional-en-la-abogacia-y-el-grado-en-derecho-en-casa-de-herrero-cuchillo-de-palo?voto=5
