New York, NY – June 28, 2015
I find foreign legal systems fascinating. I’m also intrigued by how history shapes modern legal systems, whether common law or civil code. Sometimes a legal system includes both. For example, Puerto Rican law is an interesting mix of United States common law and the Spanish Civil Code.
Now, before I digress further (mostly because I will cover how medieval English history shaped current U.S. common law in subsequent posts, so don’t get bored yet!), I would like to address an interesting aspect of the Spanish legal system. Spain is a civil code country, with remnants of Roman law, even. In the modern Spanish court system, the Procurador(a) is a curious function.
I’m not sure how to translate this term (indeed, it is often a source of confusion among professional foreign-language translators). I’ll explain what it is first, and then maybe you could suggest an English translation.
The Spanish court system provides free, publicly employed (read: bureaucrats) counsel in both criminal and civil cases. It’s a nice thought to think that you could have a free attorney (well not free, taxpayer-funded) in a civil trial, but if you opt for that route, your case will likely take years and years to go to trial. More importantly, perhaps, your counsel will be so overburdened that he may not be as effective as he otherwise could be.
In a civil trial in Spain, if you opt for a private-practice attorney, you would also have to hire a Procurador(a). The Procurador(a) must have a law degree and obtain a license to function as a Procurador(a), which is granted by the local or regional government. The profession is recognized as separate from that of a litigator. The Procurador(a) does not “practice” law in the sense that he or she does not litigate cases in court, and does not review, e.g., contracts, for substance. The Procurador(a) informs the client regarding the costs of certain proceedings. The Procurador(a) basically functions as a hybrid law clerk/civil intake court employee in the United States, collecting required pleadings and presenting them to the judge for signature. However, the Procurador(a) is not a government employee, but a self-employed individual. Click here for an interesting summary of the responsibilities of this profession (in Spanish). Interestingly, the litigating attorney will have very little contact with the judge or any court employees. It is the Procurador(a) that liaises between the client and the court.
Article 1 of Spain’s Statute regarding Procuradores states that the main objective of the Procurador(a) is “la representacion tecnica,” or technical, as opposed to substantive, representation of the client. Article 2 of the same Statute further indicates that the Procuradores are subject to what we in the U.S. would call attorney-client privilege.
I’m on the fence as to whether I prefer the Spanish privately employed Procurador(a) or the U.S. law clerk, who is a public employee. On the one hand, the U.S. law clerk, who works closely with a particular judge or judges, may have a better connection with the judge. That relationship may move the case forward more quickly. Further, from the viewpoint of a paying client in Spain, it is certainly a hardship to have to pay an attorney AND a Procurador(a). A Spanish client could always go with the public civil attorney, but would then have to wait an ungodly amount of time for the case to be resolved.
On the other hand, having the Procurador(a) as a function of the private market, means that a paying client may have more control over his business relationship, and may further mean that the Procurador(a) is more accountable to his private client. As a champion of the free market myself, I would consider this to be positive. However, in the U.S. legal costs are already astronomical, and I would therefore hesitate to add additional costs on to a private client.