AUTHORIZED TO WORK AS A LAWYER BUT WITH A SERIES OF LIMITATIONS

The Justice gives the reason to a civil guard of Costa Teguise, who asked to be able to practice also as a lawyer

The Ministry of the Interior denied him compatibility for a second private law practice activity, but the Superior Court of Justice of Madrid has recognized his right.

March 8 2019 (10:48 WET)
The Justice system rules in favor of a civil guard from Costa Teguise, who requested to be able to practice as a lawyer as well
The Justice system rules in favor of a civil guard from Costa Teguise, who requested to be able to practice as a lawyer as well

The Contentious Chamber of the Superior Court of Justice of Madrid has recognized the right of a Civil Guard officer assigned to the Costa Teguise Command to also practice as a lawyer, a request that had been denied by the Ministry of the Interior.

Specifically, through a resolution issued on March 23, 2018, by the Deputy Director-General of Personnel, Costs, and Planning of Human Resources and Inspection of the Ministry of the Interior, this officer was denied compatibility for a second private law practice activity, considering that "he was not entitled to what was requested because the activity that the plaintiff intended to carry out was subject to the incompatibility regime."

And, although this activity is not included in the prohibitions contemplated in the Law on Incompatibilities of Personnel Serving Public Administrations, the Ministry of the Interior argued that, according to the regulations, it could not grant compatibility because he was receiving a specific supplement as a civil guard that exceeded 30% of the basic remuneration. Specifically, it stated that he received a total of 8,732.92 euros as a specific supplement, when 30% of the basic remuneration is 3,027.31.

The officer appealed the Ministry's denial


However, the affected party appealed this resolution before the Courts, disagreeing with how the calculation was being made, a fact on which the Superior Court of Justice of Madrid has agreed in a judgment issued on November 30. And, although he receives 8,732.92 euros as a specific supplement, he does so for two concepts, receiving 6,458.71 as a General Component of the Specific Supplement and 2,274.21 as a Singular Component of the Specific Supplement, considering that it is the latter that should be taken into account when authorizing or not compatibility.

"This court has already argued that the reference that the rule makes to the specific supplement should be considered limited, in the case of the Civil Guard, to the singular component of said supplement since it is, in that specific section, in which the peculiarity of the position and the inherent demand and dedication are remunerated. Given that it is ultimately the position held based on which the amount of the singular component is fixed, it must be this that determines whether the amount received (because it is ultimately what will determine whether or not the legally fixed percentage is reached) allows compatibility to be authorized," the court states.

Limitations on his activity as a lawyer


Thus, as this singular component of the specific supplement is 2,274.21 and therefore less than 30% of the basic remuneration, which is 3,027.31 euros, the Superior Court of Justice of Madrid recognizes the right of this officer to combine his private activity as a lawyer with that of a civil guard, although, yes, with a series of limitations.

Specifically, the court states that he may do so "without prejudice to the strict fulfillment of his professional duties and with absolute respect for the hours assigned to the job he performs" and "without practicing the profession in matters related to or referring to activities carried out by the Civil Guard or that are within its competence or in matters in which there may be a conflict of interest."

Another similar case registered in Lanzarote


This is at least the second case registered on the island, in which the Courts recognize the right of a civil guard to also practice as a lawyer. And, in a judgment of January 2018, the Superior Court of Justice of Madrid also ruled in favor of an officer, in this case assigned to Yaiza, to whom the Ministry of the Interior had previously denied compatibility.

In that case, in addition to the specific supplement, the Ministry argued that the private activity that the officer intended to continue carrying out was "directly related to the functions he performs in his destination." However, the judgment disagreed with this statement and concluded that the private activity to be carried out was not in principle directly related to the public service performed.

Most read