Law no. 49/2004, of August 24, defines the meaning and scope of the proper acts of lawyers and solicitors and, within this framework, defines the crime of unlawful prosecution.
I - The acts of Lawyers and Solicitors:
According to art. 1 of Law no. 49/2004, of August 24, when performed in the interests of third parties and within the scope of professional activity, and without prejudice to specific competences legally provided for - e.g, on the part of members of the Certified Accountants' Association with regard to intervention in the administrative phase of the tax procedure and in tax proceedings, up to the limit beyond which, under the terms of the law, it is compulsory to appoint a lawyer, within the scope of issues related to their specific competences, cf. Article 10(2)(b) of Decree-Law 452/99 of November 5 - are acts proper to lawyers and solicitors
a) The exercise of the legal mandate (art. 2 - this being “the judicial mandate conferred to be exercised in any court, including courts or arbitration commissions and justices of the peace”) - cfr. al. a) of no. 5 of art. 1;
b) Legal advice (art. 3 - this being “the activity of legal advice consisting of the interpretation and application of legal rules at the request of a third party.” - see Article 1(5)(b).
c) The drafting of contracts and the practice of preparatory acts aimed at the constitution, alteration or extinction of legal transactions, namely those carried out at registry offices and notaries - cfr. a) of no. 6 of art. 1;
d) Negotiations aimed at recovering debts - see Article 1.6.b); and
e) The exercise of a mandate in the context of a complaint or challenge to administrative or tax acts - cfr. c) of no. 6 of art. 1.
f) Representing the Defendant in criminal proceedings - cfr. no. 10 of art. 1.
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II - The Crime of Unlawful Prosecution
According to Article 7(1) of Law no. 49/2004, of August 24, anyone who, in violation of Article 1 of Law no. 49/2004, of August 24, performs acts proper to lawyers and solicitors or assists or collaborates in the performance of acts proper to lawyers and solicitors shall be punished with imprisonment of up to one year or a fine of up to 120 days.
This is the penal reaction carried out by the State, through the Courts, in order to punish these illicit behaviors carried out daily by the various entities.
What society in general is unaware of, or at least ignores, is that such criminalization is not intended to protect professionals, but to protect citizens and society.
This reality does not generally affect or worry citizens, who often prefer to encourage this practice of crime in order, at first glance, to spend less money. However, even if they ignore this reality out of ignorance, the rule is that, in the end, the “solution” adopted in this way ends up being either more expensive or less profitable.
Let's take a brief look at some aspects that citizens should consider:
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III - Some aspects that reveal the importance of not resorting to and encouraging illicit prosecution, particularly from the client's point of view:
III.1 Professional competences:
First of all, according to Article 1(1) of Law no. 49/2004, of August 24, and with a few exceptions that are clearly not applicable in the context of this text, “only law graduates with current registration with the Bar Association and solicitors registered with the Chamber of Solicitors may perform the acts of lawyers and solicitors”.
Thus, there is a need for a first general requirement corresponding to obtaining a law degree.
There is also another, which is current registration with the respective Bar Associations, which will be obtained, as a rule, after successful completion of the Bar Internship, which implies a densification of skills, both in practical and theoretical terms.
In other words, the respective professional - Lawyer or Solicitor - will be the one in the best position and with the most technical and human skills to successfully obtain the most effective result compatible with the client's wishes.
This will be the result of practicing the same profession, usually exclusively and uninterruptedly, equipping professionals with the knowledge and strategies that enable them to perform their duties to the full for the benefit of their clients and society.
In addition, it is not uncommon for a satisfactory result “for the moment” to fall short of the (more) ideal result that would have been achieved, but which will remain unknown to the client, since “one cannot know that what is missing is what one does not know exists”.
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III.2 Some professional characteristics/duties:
Although much could be said about the professional duties to which professionals, particularly lawyers, are bound, we will now list three characteristics/duties which, from the point of view of the text, are considered the most relevant.
These are
III.2.1 The independence of the professional
According to Article 81(1) of the Bar Association Statute, “Lawyers shall defend the rights and interests entrusted to them always with full technical autonomy and in an impartial, independent and responsible manner”.
This independence is one of the most important elements for legal professionals, as it allows them to carry out their activity with the greatest freedom, free from external influences or hierarchically superior orders/instructions, always in accordance with the interests of their clients.
III.2.2 Professional trust
According to Article 97(1) and (2) of the Portuguese Bar Association Statute, “The relationship between the lawyer and the client must be based on mutual trust”, and the lawyer has the “duty to act in such a way as to defend the legitimate interests of the client”.
According to Article 98 of the Bar Association Statute, if there is the slightest possibility of a conflict of interest, either in terms of intervention or advice, between clients, simultaneously or at different times, the lawyer must abstain and, in certain circumstances, cease representation/sponsorship, thus ensuring the rights and interests of the citizen.
III.2.3 Professional secrecy
As is well known, lawyers are obliged to maintain professional secrecy with regard to all facts which come to their knowledge in the course of their duties or the provision of their services (Article 92(1) of the E.O.A.),
This duty exists “whether or not the service requested or entrusted to the lawyer involves judicial or extrajudicial representation, whether or not it is to be remunerated, whether or not the lawyer has accepted and performed the representation or service, and the same applies to all lawyers who, directly or indirectly, have any involvement in the service” (Article 92(2) of the E.O.A.),
And covering “documents or other things that relate, directly or indirectly, to the facts subject to secrecy” (Article 92(3) of the E.O.A.).
This duty can only be waived in extremely exceptional circumstances and, even then, the lawyer can maintain professional secrecy, which is often the case, since this guarantee to the public is one of the essential elements for openness towards the professional and, in this way, the proper exercise of his duties towards and for the public.
Acts carried out by a lawyer in breach of professional secrecy cannot be proved in court (Article 92(5) of the E.O.A.).
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These are three SMALL examples of characteristics that can only be guaranteed, as far as they can be, by legal professionals, since they embody duties whose violation could lead to disciplinary sanctions, and which will in no way be guaranteed by any third party who carries out such acts, since they are not bound by them.
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IV - Safeguarding the client's rights
Notwithstanding everything mentioned above, we must stress that the damage caused by bad advice can be disastrous, in dimensions and with consequences unimaginable to the client.
Thus, in addition to the fact that the risk of this happening is notoriously greater when the services are provided by an individual who does not have the skills or legitimacy to do so, it is certain that the client will be the loser, as it will be difficult for them to be compensated for the damage caused.
And this is because, in the context of acts covered by Article 1 of Law no. 49/2004, of August 24, it is the professionals, e.g. lawyers, who will have contracted insurance to ensure compensation for property and non-pecuniary damage resulting from an action or omission and which is the unlawful and culpable cause of such damage, so that the rights of clients are safeguarded as far as possible.
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V - Final notes:
It should be emphasized that, with the exception of the rare situations in which an individual claims to be a lawyer or solicitor without actually being one - deceiving and defrauding the legitimate expectations of the citizen, these criminals will only be able to perpetuate their activity if the citizen requests or accepts their services.
To this end, citizens should check before contracting services whether the professional is registered with the respective Bar Association, by accessing the link https://portal.oa.pt/advogados/pesquisa-de-advogados/ for lawyers and https://manuais.osae.pt/procurar-um-solicitador.html for solicitors.
On the other hand, if they come across a crime of unlawful prosecution, they should contact cdapas@cg.oa.pt or the Public Prosecutor's Office, for the purposes of complying with the provisions of paragraphs 1 and 2 of article 247 of the Criminal Procedure Code, as this is a private crime/dependent on a complaint, under the terms of paragraphs 2 and 3 of Law no. 49/2004, of August 24.
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