Misappropriation of Money Held in Deposit in Marbella

The paradox of the irregular deposit: why money can indeed be the object of misappropriation

Under civil law, when money is deposited — unlike a specific, identifiable asset — the depositary acquires ownership of it, remaining obligated only to return an equivalent amount of the same kind and quality: this is known as the irregular deposit. This civil-law construction raises an obvious doctrinal tension with the offense of misappropriation, which requires the disposal of something "belonging to another": if the deposited money becomes the depositary's own property, how can they misappropriate something that is already theirs? The legislature settled this question expressly in the reform carried out by Ley Orgánica 1/2015 (the 2015 Organic Law that reformed the Criminal Code), keeping money as a specific material object under Article 253 of the Criminal Code, and case law has resolved the apparent contradiction by construing diversion (distracción) as an autonomous form of unlawful conduct, distinct from misappropriation in the strict sense.

Diversion: giving funds a different purpose than agreed, "with intent of permanence"

When the object is money or another fungible asset, case law has clarified that the offense does not require the depositary to incorporate the money into their own estate in the strict sense, but rather to give it a definitive purpose different from the one agreed:

"...no se comete con la desviación orientada a un uso temporal o el ejercicio erróneo de las facultades conferidas, sino que es necesaria la atribución al dinero de un destino distinto del obligado, con vocación de permanencia."

(The court held that the offense is not committed by a deviation aimed at temporary use or a mistaken exercise of the powers conferred, but requires giving the money a purpose different from the one owed, with intent of permanence.) This doctrine makes it possible to overcome the civil-law paradox of the irregular deposit: although the depositary is, under civil law, the owner of the money, the title under which they received it — deposit, commission, administration — imposes a precise purpose for which it was handed over, and it is precisely the definitive breach of that agreed purpose, not the civil ownership of the money itself, that criminal law punishes.

Procuradores and lawyers: the denial of a right of retention over fees

One of the most common scenarios in practice is that of the procurador or lawyer who receives, from a court — following an auction, a costs assessment, or an enforcement proceeding — amounts intended for their client, and unilaterally decides to deduct their outstanding fees from them. Case law has been categorical on this point:

"...la jurisprudencia niega claramente la existencia de derecho de retención a favor de los abogados —por extensión también a los procuradores— en relación a sus honorarios."

(Settled case law clearly denies that lawyers — and, by extension, procuradores — have any right of retention over their fees.) Amounts received from third parties for delivery to the client must be transferred in full, and the professional may not, through a unilateral act of their own authority, apply any form of set-off against their own claims toward that client, however legitimate those claims may be. The correct route for recovering outstanding fees is the corresponding claim — the jura de cuentas (the summary court procedure through which lawyers and procuradores claim unpaid fees) — never the direct retention of third-party funds received for a specific purpose.

The retainer (provisión de fondos): when there is no misappropriation

Unlike the previous scenario, case law clearly distinguishes the situation of a retainer paid by the client themselves to their lawyer on account of the fees agreed for their professional services. When the client, dissatisfied with the outcome of the matter or disagreeing with the amount ultimately billed, reports the lawyer who has already used that retainer for misappropriation, case law consistently rejects the existence of an offense: a retainer paid on account of fees does not, on its own, create a criminal obligation to return it, and any disagreement about whether the service was properly rendered or about the amount owed is a strictly civil matter, to be resolved through a claim for payment or an accounting action. The situation is different where money is handed to the professional for a specific purpose unrelated to their fees — for example, to pay a fee, a judicial deposit, or a court deposit (consignación) — in which case diverting it to other purposes can indeed constitute misappropriation proper.

The obstacle of a prior settlement of accounts

When a complex, long-running financial relationship exists between the parties — joint current accounts, management relationships with multiple reciprocal charges and payments, professional engagements with expenses advanced by both sides — case law has clarified that the offense of misappropriation is not defined with the required clarity when determining the amounts allegedly diverted depends on a prior settlement process establishing the accused's true power of disposal over those funds. In such cases, the criminal route is premature until the corresponding settlement or accounting has taken place, a point that constitutes one of our most effective defense lines when the accusation arises from financial relationships between the parties that have not been fully settled.