Professional Disloyalty by a Lawyer or Court Agent: the Offence under Art. 467 CP

The trust between a client and their lawyer or court agent (procurador) is the foundation of legal defence. When that trust is seriously betrayed, the Criminal Code responds with the offence of professional disloyalty under Art. 467 CP, within the offences against the administration of justice. As specialist criminal defence lawyers in offences against the administration of justice, we explain the two forms this provision punishes, their penalties and the available lines of defence.

One Article, Two Distinct Offences

Art. 467 CP does not describe a single form of conduct, but two independent offences that share the same offender — a lawyer or court agent — and the same protected legal interest — professional loyalty, essential to the proper administration of justice — but which punish different acts:

• Art. 467.1 CP: representing or defending the opposing party in the same case without the first client's consent.
• Art. 467.2 CP: manifestly harming, by act or omission, the interests entrusted to them.

Art. 467.1 CP: Representing Someone with Opposing Interests

The offence requires that the lawyer or court agent has advised or taken on the defence or representation of a person and that, afterwards, without that person's consent, they defend or represent, in the same case, someone with interests opposed to those of the first client. This is the classic case of the professional who, having learned a party's strategy, information or weaknesses, goes on to assist the opposing party in the same proceedings.

The penalty is a fine of 6 to 12 months and special disqualification from the profession for 2 to 4 years. The first client's consent excludes the offence: if they expressly authorise the switch of sides, there is no punishable disloyalty. Professional regulations — the Law 2/1974 on Professional Associations and the General Statutes of the Legal Profession — reinforce this prohibition through deontological rules, in parallel with and independently of the criminal route.

Art. 467.2 CP: Manifestly Harming the Client's Interests

Paragraph 2 punishes the lawyer or court agent who, by act or omission, manifestly harms the interests entrusted to them. Common examples include letting a decisive procedural deadline pass without acting, failing to lodge a clearly viable appeal, or making procedural decisions manifestly contrary to the client's interest without technical justification.

The penalty is a fine of 12 to 24 months and special disqualification from employment, public office, profession or trade for 1 to 4 years. When the harm is caused by gross negligence — without intent to cause harm, but with a qualified dereliction of professional duty — the penalty is reduced to a fine of 6 to 12 months and disqualification of 6 months to 2 years.

The requirement that the harm be manifest — evident, of qualified seriousness — is the main line of defence against this offence: a debatable error of legal judgment, a procedural strategy that did not pay off, or a technical disagreement with the client do not, on their own, amount to the crime.

Criminal, Civil and Disciplinary Liability: Three Different Levels

The same professional conduct can give rise to liability on three compatible levels: disciplinary, before the relevant Bar Association or Association of Court Agents; civil, for damages arising from malpractice, usually covered by compulsory professional liability insurance; and criminal, only when the strict elements of the offence under Art. 467 CP are present. Most complaints against lawyers and court agents are resolved at bar association or civil level, without reaching the criminal threshold.

Lines of Defence

The defence against an accusation of professional disloyalty is built, depending on the form of the offence, around several fronts:

1. Consent of the first client (Art. 467.1 CP): showing that there was express or tacit authorisation to assist the party with opposing interests.
2. Absence of a real conflict: distinguishing between an actual conflict of interest and one that is merely apparent or hypothetical.
3. Lack of manifest seriousness (Art. 467.2 CP): showing that the unfavourable outcome of the case stems from an ordinary procedural risk, not an evident and qualified harm to the client's interests.
4. Absence of intent or gross negligence: showing that the conduct complied with the lex artis, supported, where relevant, by a bar association report or expert evidence.
5. Limitation period: checking whether the five-year period (Art. 131 CP) has elapsed since the conduct took place.

Analysing the file of the original case, the communications with the client and the deadlines actually met is decisive in establishing whether the professional conduct crossed the criminal line.

Nationwide Criminal Defence

At Alonso Sala we are a firm dedicated exclusively to criminal law, based at Velázquez 27, Madrid, with coverage across the whole of Spain. We assist both lawyers and court agents under investigation for professional disloyalty, and clients who have suffered manifest harm in the handling of their case. If you are facing a situation of this kind, you can contact the firm for us to review your case.