Country’s Legal System Has Rules For Complaints

by Garland M Baker on May 10, 2004

Attorneys are not too well thought of anywhere in the world. Costa Rica is no exception.

One dictionary tongue-in-cheekly defines a lawyer as “One who defends your estate against an enemy, in order to appropriate it to himself.”

There are many cases in Costa Rica where attorneys have done just that, manipulated paperwork so their clients lose assets they have acquired after they use legal services. Also, conflict of interest is not policed here as strongly as in other parts of the world. Lawyers in Costa Rica can represent themselves in cases where they are the bad guys.

The question is what can be done about it. Here is how the system works:

An attorney does not have to be a notary to practice law in this country but a notary needs to be an attorney. Attorneys practice law and notaries are persons legally empowered to witness and certify the validity of documents and to take affidavits (in Costa Rica called actas) and depositions (in Costa Rica called declaraciones juradas) and to execute any public instrument or deed. Attorneys must be a member of the Colegio de Abogados, Costa Rica’s bar association, to practice. Notaries also must be registered with the Dirección Nacional de Notariado, the national notary directorate.

The Colegio de Abogados is a public institution formed by the government to handle the private interests of this group. The Dirección National de Notariado is part of the court system.

Any citizen can make a complaint against a lawyer who has violated in any way the code of ethics set forth by the colegio. Once the complaint is filed, the allegation will be investigated by the inspectors’ office of the association. If the Board of Directors finds fault, it will hand down the appropriate sanctions. During the initial stages of the process, a conciliation meeting is called between the parties to see if a settlement can be made.

Complaints against a notary must be filed with the notary directorate of the court, and a more extensive investigation will take place. If the case has merit, the situation becomes a court case, handled much like a criminal case where the prosecutors from the notary court take over. Once this happens, the complainant needs to attach himself to the case as a civil party as well as a victim.

If the notary is found guilty and liable for his or her conduct, compensatory and punitive damages will be awarded. Since most legal professionals know the law all too well, they do not have assets in their name. This makes collection of a judgment difficult.

The good news is notaries pay every month into a fund which supplies them with a fidelity bond. Most people do not know these bonds exist and that they can be used to pay off a judgment awarded by the court.

In theory, the maximum payout out of the bond fund is 200 basic salaries. Currently a basic salary is 103,080 colons or at the current exchange rate of 430 colons to the U.S. dollar, $240. This means the payout could be as much as $48,000

The bad news is the funds payout policy was recently changed to limit any amount to that paid in by the professional. A notary practicing for eight years may only have a little more than a thousand dollars paid into the fund. If any monies are paid from the fidelity bond, the notary is suspended until money is replaced.

A list of currently suspended lawyers can be found on the Colegio de Abogados Web site.

Changes to the regulations governing notaries were made with the registration changes to the Registro Nacional, Costa Rica’s national registry, Nov. 22, 1998. Now an attorney must practice law for two years and must complete an additional two years of study before he or she can become a notary. Before this change, any attorney could be a notary.

The most important change in the regulations is that before November 1998, a notary could write a “hold harmless” clause into any document. Those clauses are now considered null and void even if they exist. No notary can release him or herself from professional liability these days. However, the statute of limitations to prosecute is a mere two years.

Another limitation is most lawyers will not file an action against a comrade, making it necessary to go it alone in front of the regulating authorities made up of lawyers and notaries.

The best recommendation is to try to stay out of a situation where you need to complain. This means, do your homework when you are going to retain a legal professional. There are 15,787 attorneys currently with licenses to practice in Costa Rica as of April 29. One half of those licenses have been issued in the past eight years, meaning most attorneys have little experience at their profession.

Check to see if someone you are interested in has contributed to the legal profession as a whole by making searches on the Internet to see if their name appears as someone who has written legal papers or are associated with organizations.

Also remember, there are many tasks that do not need a legal professional but can be handled by other qualified individuals, groups, or associations that have excellent reputations.

If you do need to make a complaint or file a criminal action against a legal professional, find someone who knows the ropes and will fight for your rights.

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