Definition
Different general professional confidentiality laws provide that all lawyers are subject to confidentiality and confidentiality duties.
Secrecy and, in the same way, documents and correspondence exchanged between the lawyer and the client are also covered (Article 542.3 of the Law of the Judiciary, Sections 32 and 42 of the ‘GRLP’ General Regulation of the Legal Profession (and Article 22 of the New General Regulation of the Legal Profession, now being processed in Parliament which, despite not having been implemented yet, contains extensive regulation on the professional privilege). It is necessary to highlight that there is no express legislation on ‘privileged’ records or correspondence in the Spanish legal system, but a duty to uphold professional secrecy, which consists in ensuring that the issues relating to a legal case are addressed openly with a lawyer without fear of any intervention by public authorities. To sum up, professional privacy is an integral component of the right of protection guaranteed by the Constitution in Article 24.
Both lawyers conducting their professional practices in Spain have the same rights and responsibilities, irrespective of whether they are in-house or external lawyers. In-house lawyers are specifically recognized as a type of individual practice of the legal profession controlled by the same legal regulations regulating that profession (Articles 27.3 and 4 of the GRLP), including professional confidentiality within those regulations.
Legal professional privilege in the sense of civil litigation
From a civil point of view, national case law states that, in applying professional confidentiality in cases where they have been involved, a lawyer has the right not to stand as a witness in a trial and that, if a lawyer stands as a witness, he has the right to withhold confidential details from his client (see the judgments of the High Court of the Balearic Islands (Audiencia Provicia) On 21 December, Judgment No 23/2013 of the High Court of Madrid (Audiencia Provincial) established that any information or evidence acquired as a result of an infringement of legal professional privilege is not relevant in the proceedings before the Court, on the ground that the evidence or information acquired in this manner is devoid of consequence.
However, the judgment of the High Court of Madrid (Audiencia Provincial) of 27 October 2011 (Judgment No 289/2011) states that, in the case of preliminary proceedings, the lawyer is not required to include the information/documentation obtained from the client with a view to allowing the claimant to obtain the information necessary to prepare the case before the court.
Pre-trial discovery proceedings
In accordance with the EU Damages Directive, Spain has recently introduced pre-trial discovery into sections 283-bis(a) to 283-bis(k) of the Spanish Law on Civil Procedure (hereinafter referred to as ‘SLCP’). Section 283-bis(b) of the SLCP has adopted provisions on access to sensitive information from the Damages Directive. Data which is subject to legal protection or professional confidentiality is covered accordingly. The Court may grant, depending on the particular circumstances of each case, specific measures to protect the confidentiality of certain information. Also, Section 283-bis(k) of the SLCP sets out the implications of non-compliance with confidentiality obligations. The aggrieved party can request that any of the following measures be imposed by the Court:
Dismissal of the legal action or proof at issue
Holding the person responsible for the harm caused by the disclosure in breach; and payment of costs.
The Court may impose a fine of between 6,000 and 1,000,000 Euros on an individual in violation, depending on the particular circumstances of each case.
Legal professional privilege in the sense of judicial inquiries
From a criminal point of view, either the parties or the courts, public prosecutors or the police authority will not breach professional confidentiality between the counsel and the client. Furthermore, the wrongful disclosure of knowledge by lawyers is a punishable act, according to Article 199 of the Spanish Penal Code.
Furthermore, in relation to the details entrusted to them as a result of their professional practice, the lawyer shall not declare against their client. It is expressly provided for in Article 416.2 of the Law on Criminal Procedure of Spain and approved by the Supreme Court’s case law (issued on 24 November 2015).
The case law of both the Supreme Court and the Constitutional Court (Tribunal Constitucional) states that if there is incriminating evidence against the defense lawyer (judgment of the Tribunal Constitucional number 183/1994, judgment of the Supreme Court of 6 March 1995), the only legitimate interception of correspondence between the lawyer and the client during a criminal investigation is.
In an exceptional basis, professional confidentiality can be waived if the lawyer exceeds his legal responsibility and cooperates freely in illegal activity (see the judgment of the Supreme Court of 28 November 2001, number 2026/2001). Judicial professional right in the light of the competition authority’s inquiry.
Legal professional privilege in the sense of competition authority inquiries
The above considerations are also applicable from a competition law point of view. Nonetheless, the Court of Justice (Akzo judgment) has ruled that internal business interactions with in-house attorneys are not entitled to legal professional privilege in the light of European Commission inquiries (see Scope with regard to the inspections carried out by the Spanish competition authorities under Spanish law).
Legal professional privilege scope
The general rule is that, within the framework of a lawyer-client relationship, all spoken or written messages, records or correspondence shared between a lawyer and his client, opposing parties and other lawyers must be kept confidential. Any violation of this obligation may result in the lawyer being found criminally liable and the Bar Association, as well as any other potential authority relevant to the matter, imposing penalties.
In the specific case of competition law, it is also understood that, as can be inferred from the recent case law released by the Spanish Competition Authority (‘Comisión Nacional de los Mercados y la Competencia’ or ‘CNMC’), any internal document which merely reproduces the advice given to an external lawyer is protected by professional confidentiality. In this regard, it should be noted that, in the case of a dawn raid inspection, the raided corporation is obligated to clarify and demonstrate to the Spanish Competition Authority the reasons for treating this type of information (i.e. the replication of external legal advice) as information covered by professional confidentiality (see the judgment of the Supreme Court of 27 April 2012). Once those documents have been shown to be secure, the officers of the Spanish Competition Authority should immediately return those documents to the raided company and remove them from the reach of the investigation.
The Supreme Court has recently stated the above in this respect. Namely, that. Arguing that a certain document is protected by legal privilege would not be appropriate if the CNMC officers are not presented with any reasons for such coverage (judgment issued on 21 September 2015).
Are in-house lawyers protected by legal professional privilege?
As mentioned above, Article 27.4 of the General Law of the Legal Profession (Estatuto General de la Abogacía) specifies that, in the same way as external counsel, in-house counsel shall benefit from the general principles of liberty and freedom. This legal provision does not differentiate between external and in-house lawyers, which leads to the conclusion that, in the sense of the performance of their legal services, both are subject to similar duties and privileges.
Nonetheless, in the particular case of Spanish competition law, during the inspections, the Spanish Competition Authority normally behaves as if, on the basis of the above-mentioned judgment in Akzo, the internal counsel’s correspondence does not enjoy professional confidentiality.
The method was questioned before the courts, as the Akzo decision did not impact the inspections carried out under Spanish regulations. The Spanish Supreme Court did not answer this issue explicitly and merely claimed that there had been no breach of professional privacy in those specific cases, because the internal correspondence with in-house lawyers confiscated during the inspections had not been used by the competition authority to justify the infringement of competition law.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Professional confidentiality remains regardless of the lawyer’s nationality. Non-nationally accredited lawyers therefore have the same rights as national lawyers.