SPANISH - ENGLISH LEGAL PRACTITIONERS.
When British people come across to Spain in order to buy a home (to live in or as a holiday home) they are confused by the way the
terms referred to legal practitioners that inspire such confidence and carry such weight in English Society are used differently in
Letís see briefly the definition of these terms for a best understanding of the article;
A person whose profession is to represent clients in a Court of law or to advise or act for clients in other legal matters. This is the
most general definition of a Lawyer. This generalization is required because in England the role and position of a `Lawyer? varies so
much and is so vast that it cannot be encompassed in a single, precise definition. In England, Lawyer is used to refer to one who is
trained in Law (Barristers, Solicitors, Legal executives and licensed conveyancers) and practices it in one form or another. In England
as mentioned, 'Lawyer' is used as a generic term for a group of professions; Barrister, Solicitor etc.
A British Lawyer who is qualified to speak in the Higher Courts of Law on behalf of either the defense or prosecution. Barristers
specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions. He or she acts as a representative
for clients, traditionally in the Higher courts and above (High Court and Crown Court and Court of Appeal). But now Barristers
have to compete with Solicitors for their place in the High Courts. Although the Solicitors have gained this power to speak in the
Higher Courts Barristers still seem to be regarded as the elite among the people. Barristers are very rarely contacted directly by
the client; rather the Solicitor who represents the client is responsible for engaging an appropriate Barrister to speak for their
client(s) in Court. A large difference between Barristers and Solicitors is that while Solicitors are capable of filling many duties
well, Barristers tend to be more specialized in their fields and more qualified in one or two aspects, hence why they are chosen
when possible for High court cases and above.
(In Britain) a Lawyer who advises clients on matters of law, draws up legal documents, prepares cases for Barristers, etc., and
who may represent clients in certain Courts. Until recently, Solicitors were able to represent their clients in County Courts and
Magistrates Courts but would have to engage a Barrister to act as an advocate for clients in the High Courts and higher (High
Court, Crown Court and Court of Appeal). However the exclusivity that was once given to Barristers is now gone and Solicitors
are free to represent their clients in the higher Courts. Despite this, Barristers still tend to be the representatives chosen for
High Court cases when the clients can afford the extra fees.
A Spanish lawyer (Abogado) is a person who exercises professional legal defense of the parties at trial, as well as judicial and
administrative proceedings arising from it. An Abogado also advises and gives advice on legal matters. Another of their roles is to draw
up contracts and documents to be put before the Notary. They fill many roles at once (from the British perspective) as they do both
the work of a Lawyer; Solicitor and Barrister. However, while all Abogados are Barristers (in the English sense) in the context that
they appear in the Court of Appeal, only the most respected, most qualified, Abogados are given the cases to appear in the High
Court and Supreme Court. They also do the work of a Solicitor, appearing in the lower Courts, advising on legal matters and aiding in
preparing a Will. Abogados are also needed when it comes time for the Will to be executed. The immense amount of roles that
Abogados fill can particularly be seen when it is noted that the Spanish don't really have a word for 'Solicitor,' they simply have the
word Abogado, which is also the translation for 'Lawyer', ĎSolicitorí and 'Barrister'.
The Spanish Asesores hold an unusual role, one unique to Spain. This role is very helpful to the Spanish as it creates a general name
for the many jobs that the Asesores do. From handling administrative matters to dealing with taxes, Asesores are very useful people
to the Spanish. However, the uniqueness of this role can be the cause of a great deal of trouble for British buyers coming to Spain in
order to purchase property. When it is seen that the Spanish word Asesores, translates into the word 'Advisers' in English, it
becomes apparent that the English have no equivalent to this particular job, British advisers are entirely different to the 'Advisers' that
are the Asesores. Therefore the Asesores have a gap. With no translation for their role, they have free reign to translate their job title
themselves. So since their jobs are so similar to the jobs the Solicitors of England hold, they translate their job title into 'Solicitor',
however it seems that some do not understand the difference between English Solicitors and the job they hold. Therefore, when a
British buyer finds out they are a 'Solicitor' he assumes they are a Solicitor like the British ones. This honest mistranslation can
cause a great deal of trouble later on, as the Asesores cannot represent a client in Court.
BUYING IN SPAIN, CONFUSION OF TERMS.
PROBLEM AND SOLUTION:
As mentioned above, some British people are confused by the way the terms that inspire such confidence and carry such weight in
English Society are used differently in Spain. Take the misuse of the term `Solicitor? as a particularly dangerous pitfall that many
English buyers have fallen into. To the English, a Solicitor is a respectable, well-trained man or woman, qualified in the Law, capable
of dealing with civil matters and who can represent them in Court should the need arise. Not only that, but the Solicitors of Britain
provide advice for a variety of things that many people don't often consider, from dealing with wills to working with families in Court
over family disputes, and separation, even representing clients in Court during the course of the latter work.
And so, you see, in England the Solicitor is a man or woman of many talents, who can specialize in a wide range of things and is
always capable of representing their client(s) in Court. However, the truth in Spain is vastly different. What we would call a Solicitor is
in fact an Abogado and yet what we would call a Barrister is also an Abogado, so what does that make the people who claim to these
British buyers that they are Solicitors? To practice law in Spain you have to have qualified to practice it, as well as having registered
yourself with Barís association. By qualifying to practice law, you become an Abogado, this shows that some of these 'Solicitors'
are not Solicitors at all in the way the British understand it. Some people who claim to be Solicitors in Spain are actually only what
would be called a secretary in England or maybe even a PA. Their role is to handle some administrative duties and also taxes, in
general they are able to act as a tax consultant. In Spain, these are called Asesores. The danger with the Asesores is that the
English don't have a translation for their role; they do not have an equivalent in England. This means that as their roles are similar to
Solicitors (but, they cannot represent their client in Court if something goes wrong in the housing transactions) they claim to be
Solicitors as there is a similar hole in translation in Spain for the actual role of Solicitor. A mistranslation from both the English and
the Spanish can result in severe trouble down the line for the British buyer. The absence of a particular word for what the English
would call a 'Solicitor' is generated by the fact that the Spanish simply have the one word for Solicitor, Barrister and Lawyer -
Because of the holes in translation on both sides, some Asesores unsurprisingly make the mistake of referring to themselves as
Solicitors as their jobs are similar. This confusion of terms can create a problem later because if something goes wrong, the Asesores
cannot represent them in court.
The confusion that is felt by the British buyers can also be seen in how one qualifies for the job of Asesores. If they are not registered
Abogados then they have not qualified to practice law, in fact, a very real part of the danger that the Asesores present to British
buyers when buying property is that there are no legal requirements for the role of Asesores. This means that anyone may declare
themselves as an Asesores. When this is examined and then compounded with, the fact that the translation mistake results in the
Asesores claiming to be 'Solicitors', the true danger of the simple mistake is seen. What can potentially occur, is that the British
buyer could find a house he likes, consult with his 'Solicitor', (that could in fact be an Asesores) and then engage in the buying
process. However, if at any point in the process, something goes wrong he could then find himself with an entirely unqualified
'Solicitor'. To aggravate the problem of perhaps needing to go to Court and suddenly not having a representative, there is also the fact
that the British buyer could be unable to go to a professional oversight body to collect recompense, in that case, the only way to
remedy the situation if losses are suffered due to bad advice or service from the Asesores will be to bring a civil lawsuit against the
Asesor in the normal Courts, for which you will require an Abogado.
To conclude, this mistranslation of terms presents a very real and present danger to British buyers. Therefore in order to prevent
themselves facing the trouble that many Englishmen have walked into before them, it is only sensible for English buyers to ask for an
Abogado. These Abogados are well-trained and highly qualified. However, Englishmen must retain a reasonable sense of caution and
ensure that their Abogado is registered with the Bar's Association. There are many Bar's associations throughout Spain (the
Consejo Valenciano de Colegios de Abogados identifies 6 in the Valencia area) so if your Abogado is not registered, and cannot
provide you with their registration number to the Bar's association, they are not an Abogado at all. Despite this minor potential
problem, to acquire an Abogado is to avoid a very large pitfall that has caught many British buyers over the last few years.
In the course of writing this article I have used the information provided by the Spanish Lawyers at the office of Connie Raymundo and
the following to provide definitions and/or further information:
Book: You and the Law in Spain - By David Searl (2010)
Book: List of Registered Lawyers in Alicante and Province from Valencian Barís Association Main board.