The question which arises is what is covered by legal professional confidentiality in Spain?
The general rule is that all spoken or written messages, records or correspondence shared between a lawyer and his client, opposing parties and other lawyers within the context of a lawyer-client relationship must be kept confidential. Any violation of this obligation may lead to the criminal prosecution of a lawyer and the imposition of penalties by the Bar Association, as well as by any other possible authority involved in the matter.
In the specific case of competition law, it is also understood that any internal document which merely reproduces the advice given by an external lawyer is subject to professional confidentiality, as can be inferred from the recent case law issued by the Spanish Competition Authority (Comisión Nacional de los Mercados y la Competencia or CNMC). In this regard, it is important to point out that, when the dawn raid inspection is carried out, the raided company is obliged to clarify and prove to the reasons justifying the consideration of this type of information (i.e. the reproduction of external legal advice) as information protected by professional confidentiality. Once it has been confirmed that those documents are 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.
Are domestic attorneys covered 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-house counsel gain (as do external counsel) from the general principles of equality and independence. This legal provision does not differentiate between external and in-house lawyers, which leads to the conclusion that they are all subject to the same duties and privileges in the performance of their legal services
However, in the particular case of Spanish competition law, the Spanish Competition Authority typically behaves during inspections as though the correspondence of internal counsel does not enjoy professional confidentiality on the grounds of the Akzo judgment referred to above.
Such an approach has been questioned before the Spanish Courts because the Akzo decision does not impact the inspections carried out under the Spanish legislation. The Spanish Supreme Court did not answer this issue specifically and clearly claimed that there had been no breach of professional privacy in those particular cases, because internal communications with domestic lawyers intercepted during inspections had not been used by the competition authority to justify infringements of competition law.
Is client-attorney privilege applicable to the correspondence with foreign lawyers?
Professional confidentiality shall extend irrespective of the ethnicity of the lawyer. Non-national accredited lawyers therefore have the same rights as national lawyers.