What is protected by legal professional privilege?
The general rule is that any spoken or written communications, documents or correspondence exchanged between a lawyer and their client, opposing parties and other lawyers within the context of a lawyer-client relationship must be kept confidential. Any breach of this duty could lead to the lawyer being held criminally liable and to sanctions being imposed by the Bar Association, as well as by any other potential authority related to the matter.
In the particular case of competition law, it is also understood that any internal document that merely reproduces advice provided for an external lawyer shall be covered by professional secrecy, as may be inferred from 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 highlight that when a dawn raid inspection is carried out, the raided company is required to explain and demonstrate to the Spanish Competition Authority the reasons that justify the consideration of this type of information (ie reproducing external legal advice) as information protected by the professional secrecy (see the judgment of the Supreme Court of 27 April 2012). Once it is demonstrated that those documents are protected, the officers of the Spanish Competition Authority should immediately return those documents to the raided company and exclude them from the scope of the investigation.
In this regard, the Supreme Court has recently confirmed the above. Namely. arguing that certain document is covered by the legal privilege will not suffice if no arguments for such coverage are provided to the officers of the CNMC (judgment issued on 21 September 2015).
Are in-house counsel protected by legal professional privilege?
As said above, Article 27.4 of the General Regulation of the Legal Profession (Estatuto General de la Abogacía) provides that in-house counsels benefit (in the same way external counsels do) from the general principles of freedom and independence. This legal provision do not distinguish between external and in-house counsels, which leads to the conclusion that both are subject to identical duties and rights in the framework of the performance of their legal services.
Nevertheless, in the specific case of Spanish competition law, the Spanish Competition Authority usually acts during the inspections as if internal counsel communication enjoys no professional secrecy on the grounds of the Akzo judgment abovementioned.
Such approach has been challenged before the Spanish Courts as the inspections carried out under Spanish regulations should not be affected by the Akzo judgment. The Spanish Supreme Court did not address directly this issue and simply stated (Judgment of 27 April 2012) that there had not been an infringement of the professional secrecy in those particular cases as the internal communications with in-house lawyers seized during the inspections had not been used by the competition authority to support the infringement of competition law.
Does legal professional privilege apply to the correspondence of non-national qualified lawyers?
Professional secrecy applies irrespective of the nationality of the lawyer. Therefore, non-national qualified lawyers have the same protection as the national ones.