Lawyer and procurador: differences and when you need both

Lawyer and procurador: differences and roles in Spain

When preparing a claim or receiving a court claim, it is natural to ask why two professionals may be involved: a lawyer (abogado) and a procurador.

Their roles are different and complementary. The lawyer advises and directs the legal defence. The procurador, a court agent who acts as the party’s procedural representative and is not a prosecutor, exercises that representation and carries out the procedural steps the law assigns to them.

Understanding the distinction helps to organise the proceeding, to know who handles each task and to understand which services are being engaged.

This guide uses the Spanish civil process mainly as its reference. The professional involvement required changes with the jurisdictional order and with the specific step.

1. What the lawyer does

The lawyer gives legal advice and directs and defends the party.

The work may include studying the documents, identifying the legal options, preparing the strategy, drafting submissions, negotiating and defending the client’s position at the hearings.

Before starting litigation, it is worth clarifying the result sought, the evidence available and the main difficulties.

With defective works, for example, the legal analysis must link what was contracted, what was carried out and the damage claimed. It is also worth assessing whether technical documentation is missing or whether a suitable settlement can be reached.

The scope of the work should be defined: an initial consultation, a negotiation and the defence of a full proceeding are not necessarily the same engagement.

2. What the procurador does

The procurador exercises the party’s procedural representation where this applies.

The functions include receiving and passing on communications, following the procedural steps and cooperating in the progress of the proceeding as the law provides. They may also carry out certain acts of communication, cooperation and enforcement in the cases and within the limits laid down by law.

The role requires coordination with the lawyer. Procedural representation channels the party’s involvement, while legal direction determines how the defence is put.

The procurador should therefore not be seen as someone who simply files documents, nor as a substitute for legal advice.

3. Differences between lawyer and procurador

They are distinct professions. The Ley de Enjuiciamiento Civil also provides that the two cannot be practised simultaneously.

Involving both does not mean paying twice for the same function. It does require understanding what each one does and how their services are budgeted.

4. When they are compulsory in a civil proceeding

The general rule in the civil process provides for the intervention of lawyer and procurador, but there are exceptions.

These include:

• Verbal claims determined by amount where it does not exceed 2,000 euros.
• The initial petition in monitorio (payment order) proceedings, in accordance with their regulation.

The law provides for other specific situations. The rule should not be summarised by saying that any claim up to 2,000 euros allows you to act without professionals, because how the proceeding is determined also matters.

What happens if the matter moves forward?

The fact that an initial petition may be filed without a lawyer or procurador does not mean every later step keeps that rule.

The required step, the applicable proceeding and whether representation becomes necessary must be reviewed.

And if they are not compulsory?

It is worth weighing the legal difficulty, the documents, the possible objections and the consequences of the decision. The absence of a legal obligation does not remove the need to prepare the matter properly.

5. How representation is conferred on the procurador

In the civil process, the power may be conferred through the forms set out in article 24 of the Ley de Enjuiciamiento Civil, including a notarial grant and apoderamiento apud acta, whether in person or electronically under the legal terms.

What apoderamiento apud acta is

It is a way of conferring representation before the administration of justice. It can be done before the letrado de la Administración de Justicia (the court’s legal officer) or through the corresponding electronic court platform.

Granting it apud acta is free of charge. That does not mean the procurador’s professional services are also free.

Before arranging it, confirm the professional’s details, the scope of the power and the instructions for proving it was granted.

If you live outside Spain, it is worth organising this in advance to check which option you can use.

6. General power and special powers

A general power for court proceedings allows the ordinary procedural acts within its scope.

Certain steps, however, require a special power. The law includes, among others, waiver, settlement, withdrawal and acceptance of the claim.

The power itself may also contain express exclusions.

Before formalising a settlement or taking a decision that may end the proceeding, both the client’s decision and the sufficiency of the representation must be checked.

An advisory engagement and a procedural power serve different purposes; both should be reviewed.

7. Does having a procurador mean you need not attend court?

Not necessarily.

Procedural representation does not automatically replace the steps that require the party’s personal involvement. A summons may require your presence for a specific purpose.

If you receive a communication, pass it on in full to the professional directing the matter and confirm:

• In what capacity you are summoned.
• For which step.
• On what date and where.
• Whether you must appear in person.
• Which documents you need to bring.
• Whether interpreting is needed.

It should not be assumed that the power allows the procurador to give evidence in place of the client.

8. The rules change in other jurisdictional orders

The civil model must not be carried over automatically to every proceeding.

Employment proceedings

The social order has its own rules on representation and defence. As a general rule, defence by a lawyer and technical representation by a graduado social (a qualified social-graduate legal representative) are optional at first instance, while appeals have specific requirements.

Administrative proceedings

The law distinguishes the requirements of representation and assistance according to the body and provides for specialities. The specific step must therefore be reviewed before concluding that a lawyer is enough or that a procurador is also needed.

In a criminal matter it is also necessary to check the procedural position and the stage of the proceedings. An initial legal assistance and representation throughout the case should not be confused.

9. Fees and costs: what to clarify

Before engaging anyone, ask for an explanation that makes it possible to distinguish:

• The lawyer’s services.
• The procurador’s services.
• Steps included and excluded.
• Retainers or funds on account.
• Possible costs of experts, translations or other steps.
• Appeals and enforcement.
• The consequences of reaching an early settlement.

Do not assume that an amount referring to first instance includes any later appeal.

It is also worth agreeing how additional costs will be communicated and which decisions require authorisation.

10. How to coordinate with both professionals

Clear organisation makes the case easier to follow.

The client can ask the lawyer about strategy and legal decisions, while questions of representation and procedural steps are coordinated with the procurador, according to the working system agreed.

In any event, report immediately any notification you receive directly. Keep the complete document and the date of receipt.

Do not wait for a scheduled meeting if the communication requires action within a time limit.

Frequently asked questions

Does the procurador replace the lawyer?

No. Their functions differ. Where the law requires both, engaging one does not replace the other’s intervention.

Do I need a procurador for legal advice?

A consultation does not in itself require procedural representation. That need must be assessed when a step or proceeding requiring it arises.

Does free apud acta include the procurador’s services?

No. The free element is the granting of the power, not all the professional work that follows.

Does a general power allow any decision?

No. Some steps require special powers, and the limits of the power must be respected.

Can I choose my professionals?

As a general rule, the parties may freely appoint their representatives and defenders, provided they meet the legal requirements and subject to the exceptions provided for.

Advice on preparing your proceeding

At MH Legal & Seguros we advise national and international clients on disputes governed by Spanish law.

From our offices in Dénia, Gandía and Villalonga we handle matters throughout Spain. We review the documents to explain which professional involvement the case requires and how to organise the next steps.

You can write to info@mhlegalyseguros.com with a short description of the matter. If you have received a notification, provide the complete document and the date of receipt.