Spain
From a criminal law perspective, even judges have been prosecuted for breaching professional secrecy between lawyer and defendant, for example by taping their private conversation without sufficient legal grounds. The Supreme Court recognises the right of a lawyer to refuse to testify against their client on the basis of information obtained as a result of their professional activity. More recent Supreme Court case law confirms that:
- The basis of the obligation is the trust and confidentiality of the client relationship.
- A breach of this duty implies damage to the client´s rights of confidentiality and to effective legal protection;
-
The obligation begins when a lawyer is instructed by a client. This is to ensure an adequate defence in the future process, which may require defendants to provide their lawyers with all available information required to guarantee an effective defence;
- Lawyers are also not required to report any incriminating or damaging information in accordance with art. 263 of the Spanish Criminal Procedure Act.
From the civil perspective, there are relevant precedents such as judgment number 6/2018, issued by the High Court of Valencia (Audiencia Provincial) on 16 January (appeal number 355/2017). In this case, a lawyer acted as a witness. In the hearing, the lawyer recognised that he was appointed as a lawyer by the plaintiff in criminal proceedings against the defendant and that an amicable settlement had been agreed between both parties (plaintiff and defendant). By means of this agreement a debt was recognised and the criminal complaint filed by the plaintiff was withdrawn. The Court held that, these statements did not infringe the lawyer's obligations of professional secrecy.
A more recent precedent was issued by the High Court of A Coruña on 25 January 2021. The court pointed out that the right to professional secrecy is not a right, but an absolute obligation of confidentiality and it is a right of the client. So, to respect this right, the lawyer cannot be forced to testify. The only exception would be that the client exempts the lawyer from this duty for his own protection. Furthermore, the judge stated that any response given by the lawyer in those circumstances would be a violation of fundamental rights and should be inadmissible.
From an antitrust perspective, the Spanish Competition Authority had the opportunity to decide on the application of legal privilege to competition procedures in Spain in a decision issued in December 2020 (Case R/AJ/079/20 Albia). In particular, the Spanish Competition Authority obtained certain evidence related to potential infringements during a merger control procedure in the funerary services sector (Case C/1086/19 Santa Lucía/Funespaña). That evidence allowed the authority to open an investigation and conduct a dawn raid on Albia’s premises, which was subsequently appealed by the company under investigation.
In that context, Albia filed an appeal and claimed, among other things, that the Spanish Competition Authority had breached legal privilege on the basis that European case-law (i.e., Akzo judgment) on this matter did not apply. From their perspective, the difference between legal privilege for in-house lawyers and external lawyers is not valid. This argument -together with the entire appeal- was rejected by the Spanish Competition Authority and it remains to be seen if the defendant appeals.