Scope of legal professional privilege

Spain

Spain

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.

Last modified 15 Mar 2019

Different general rules regarding professional confidentiality establish that all attorneys are subject to the duties of confidentiality and secrecy and, in the same way, documents and communications exchanged between lawyer and client are protected as well (Article 542.3 of the Judiciary Law, articles 32 and 42 of the General Regulation of the Legal Profession, the 'GRLP', (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 important to highlight that in the Spanish legal system there is no express regulation on 'privileged' documents or communications, but an obligation to keep professional secrecy, which consists in the guarantee to discuss freely with a lawyer the issues regarding to a legal case with no fear to any interference by the public authorities. Summarizing, the professional secret is a fundamental part of the right to defense that is guaranteed by the Constitution in Article 24 (judgment of the National Court of 26 September 2011).

In Spain, all the lawyers practicing their professional activity have the same rights and obligations, regardless of being in-house lawyers or external ones. In-house lawyers have an express recognition as a form of individual practice of the legal profession regulated by the same legal regulations that rules such profession (articles 27.3 and 4 of the GRLP), including among these regulations the professional secrecy.

Legal professional privilege in the context of civil litigation

From the civil perspective, there is national case law that states that a lawyer, in application of professional secrecy in cases where they have been involved, has the right not to stand as a witness in a trial and if a lawyer stands as a witness, they have the right to withhold confidential information belonging to their client (see judgments issued by the High Court of Baleares (Audiencia Provincial) number 18/2014 on 22 January and number 174/2017 on 15 June).

Judgment number 23/2013 issued by the High Court of Madrid (Audiencia Provincial) on 21 December established that any information or evidence obtained as a result of a breach of legal professional privilege is not valid in Court proceedings, on the basis that evidence or information obtained in this way is devoid of effect.

The judgment issued by the High Court of Madrid (Audiencia Provincial) on 27 October 2011 (judgment number 289/2011) however declares that a lawyer is not obliged to provide the information / documentation received from the client, in the case of preliminary proceedings in order to allow the plaintiff to obtain information necessary to prepare the case to be filed before the court.

Pre-trial discovery proceedings in Spain

Spain has recently incorporated pre-trial discovery into sections 283-bis(a) to 283-bis (k) of the Spanish Law on Civil Procedure (hereinafter, the "SLCP"), in line with the EU Damages Directive.

Section 283-bis(b) of the SLCP has incorporated the Damages Directive’s rules on access to confidential information. Evidence subject to legal privilege or professional secrecy is accordingly protected. Depending on the specific circumstances of each case, the Court may grant particular measures in order to protect the confidentiality of certain information (such as drafting a non-confidential version of a resolution redacting confidential information or restricting public access to hearings).

Section 283-bis(k) of the SLCP also sets out the consequences of non-compliance with obligations of confidentiality. The aggrieved party may request that the Court impose any of the following measures:

  • Dismissal of the legal action or evidence in question
  • Holding the person in breach liable for the damage caused by the disclosure; and
  • Payment of costs.

Depending on the specific circumstances of each case, the Court may impose a fine between 6,000 and 1,000,000 Euros on the person in breach.

Legal professional privilege in the context of criminal investigations

From the criminal perspective, professional secrecy between lawyer and defendant cannot be violated either by the parties or by the courts, public prosecutors or the police authorities. Furthermore, according to Article 199 of the Spanish Criminal Code, the unlawful disclosure of information by lawyers is a punishable act.

In addition, the lawyer must not declare against their client regarding the information entrusted to them as a result of their professional activity. It is expressly provided in Article 416.2 of the Spanish Criminal Procedure Act and supported by the case law of the Supreme Court (issued on 24 November 2015).

The case law of the Supreme Court as well as of the Constitutional Court (Tribunal Constitucional) states that the only valid interception of communications between lawyer and client during a criminal investigation is where there is some incriminating evidence against the defence lawyer (judgment of the Tribunal Constitucional number 183/1994, judgment of the Supreme Court of 6 March 1995).

Professional secrecy can be waived on an extraordinary basis when the lawyer exceeds their legal duty and willingly cooperates in criminal activities (see the judgment of the Supreme Court of 28 November 2001, number 2026/2001). Legal professional privilege in the context of investigations by the competition authority.

Legal Professional Privilege in the context of investigations by the competition authority

From a competition law point of view, the above considerations are also applicable. Notwithstanding it, the Court of Justice (Akzo judgment) has stated that internal company communications with in-house lawyers in European Commission investigations are not covered by legal professional privilege (see Scope with regard to the inspections carried out by the Spanish competition authorities under Spanish law).

Legal Professional Privilege in the context of merger control procedures

As is the case for merger control procedures before the European Commission, the Spanish competition authority is increasing the volume of documentation requested for the assessment of transactions. This is related to the sophistication and complexity of the transactions and the assessment methods in recent years as well as the markets in which the transactions take place.

Notwithstanding the above, to date there is no particular case law in Spain dealing with legal professional privilege in the context of merger control; privileged information receives similar treatment in the context of both sanctioning and merger control procedures.

Last modified 15 Mar 2019

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.

Last modified 15 Mar 2019

From the criminal law perspective, the Spanish Supreme Court convicted not too long ago a judge that breached the professional secrecy between lawyer and defendant by taping their private conversation without the required legal grounds (judgment of the Supreme Court of 9 February 2012). In this regard, a judgement of 24 November 2015 issued by the Supreme Court also recognises the right of a lawyer to refuse to declare against their client regarding the information obtained as a result of their professional activity. 

The most recent Supreme Court case law (Judgement No. 451/2018 of 10th October) stated the following:

  • The basis of the obligation are the trust and confidentiality of the client relationship.
  • The violation of this duty implies an injury of the client´s rights to the intimacy and to the effective legal protection.
  • The obligation begins at the pre-trial moment, inasmuch as the future part of the eventual process has to be free to provide the lawyer who assists them with all the information in order to guarantee an effective defence.
  • The lawyer is also exempted from the duty to denounce according to the art. 263 of the Spanish Criminal Procedure Act (without prejudice to the legal limitations in relation to the configuration of such professional secrecy).

From the civil perspective, there are relevant precedents such as the 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.

Last modified 15 Mar 2019

Content to follow shortly.

Last modified 15 Mar 2019

Javier Santos

Javier Santos

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