Spain: Communications Between Attorneys And Clients: Privileges/Protections

Introduction.

In order for this article to be correctly understood, we should first mention the relationship between attorneys and clients. As established by Article 4 of the Attorney's Code of Practice, the relationship between the client and his or her attorney is based on trust, and requires comprehensive professional conduct which is honest, sincere, truthful and diligent. Furthermore, following the case law of the Supreme Court (for example, the Supreme Court Judgment of April 3, 1990), trust is the basis of this relationship, the absence or loss of which shall terminate it. Trust, therefore, defined according to the Spanish dictionary as the belief one has in someone or something, is the sine qua non element or condition for all relationships between attorneys and clients, which is intuitu personae.

With regard to the protection/privilege of communications between attorneys and clients, there is, from the point of view of the former, what is called professional secrecy and, from the perspective of the latter, the right to the confidentiality of such communications.

Professional secrecy is not a mere personal "privilege" of attorneys linked to their status, since it is established to protect their clients and their interests; rather, it is an inherent part of legal practice. Failing to guarantee and protect the bond of trust between clients and attorneys would endanger the professional activity of the latter and their ability to defend the rights of their client before the public authorities and private individuals. Ethical considerations are also manifested in attorney confidentiality, since compliance with this rule is part of the ethical conduct required of all attorneys. The Constitutional Court stated, from the outset, in judgment 183/1994, of June 20, that the client is not the holder of the right to professional secrecy.

The basis for professional secrecy is found, both in the relationship of trust that exists between attorney and client, in the protection of their privacy from third parties, and, primarily, in the need to protect this secrecy in order to for justice to be done correctly. Judges cannot render their decisions and judgments fairly if they do not have accurate and complete information regarding the facts technically expressed by the attorneys of both parties to the dispute. Attorneys cannot perform their role as defenders correctly if they do not have full information on all of the facts provided by the client or obtained by the attorney when performing their duties. And clients will not give their attorney a full and truthful version of the facts if they cannot fully trust in the guarantee of secrecy of the information that they entrust to their attorney. Professional secrecy thus constitutes an essential pillar of defense, Justice, the Rule of Law and, in short, the Democratic State. Access to the privacy of third parties is the basis of professional secrecy.

The right to the confidentiality of communications between attorneys and clients, which is often referred to as legal privilege or attorney-client privilege, can be defined as the right of clients to prevent the content of the professional communications with their attorney from being disclosed to third parties. It can also be defined as the legal principle by virtue of which the disclosure of certain communications between attorneys and their clients cannot be ordered within administrative or legal proceedings.

Although professional secrecy is somewhat often used as a synonym of the confidentiality of communications between attorneys and clients, the truth is that they do not fully overlap, though they do complement each other.  It could therefore be said that professional secrecy and the right to confidentiality are "two sides of the same coin".

1. Professional secrecy.

Having briefly discussed professional secrecy and the right to confidentiality above, and although both protect communications between attorneys and should not be confused as they have non-identical yet complementary meanings, professional secrecy will briefly be explained below.

1.1 Definition.

For the definition of professional secrecy, we should first turn to the Spanish dictionary, which defines it as "the duty of members of certain professions such as doctors, lawyers, notaries, etc., not to disclose to third parties any facts made known to them as part of their professional practice". Note that the dictionary itself mentions lawyers as one type of professional with the duty of secrecy, and that "facts" are subject to protection. But despite the apparent simplicity of the definition of professional secrecy, it is one of the most difficult legal concepts to grasp and apply in our legal system.

Spanish legislation establishes professional secrecy as an attorney's right and duty.¹ Doctrine has maintained that this duality is based on the relationship of trust between clients and attorneys, or rather, the general interest that governs legal practice itself.

There is a significant body of Constitutional Court case law surrounding the concept of professional secrecy, since this type of secrecy is raised to constitutional level by its close connection with Articles 18 and 24 of the Constitution. This is highlighted by Constitutional Court Judgment 110/1984 of November 26, Legal Ground 10, and Constitutional Court Judgment 6/1988 of January 21, Legal Ground 6. In the second judgment mentioned, the comment by the Constitutional Court is interesting in that where Article 18 (right to information) and Article 24 (professional secrecy) clash, professional secrecy must prevail and take precedence.

1.2 Purpose of professional secrecy.

1.2.1 The purpose of professional secrecy in legislation.

In order to define the purpose of attorney's professional secrecy, we should start with the legislation regarding this concept and determine what is being protected.

In Spanish law, Article 5 (2) of the Attorney's Code of Practice states that: "The duty and right to attorney's professional secrecy includes the secrets and proposals of the client, of the opposing party, of colleagues and all the facts and documents made known to him or which he has received as part of any of the aspects of his professional endeavor". Furthermore, paragraph 4 of the same article establishes that: "Conversations held with clients, opposing parties or their attorneys, in person or by any telephonic or electronic means, may not be recorded without the prior warning and agreement of all the actors involved and, in any case, they shall be protected by professional secrecy."

It is also worth mentioning Article 542 (3) of the Organic Law on the Judiciary, which states that: "attorneys should keep secret all of the facts or news made known to them as part of any of the aspects of their professional endeavor, and may not be compelled to testify in that regard". However, any statements that do not fit in any of the aspects of their professional endeavor, because go against the nature of the profession, exceed the limits of the functional scope covered by protection from secrecy. Such a situation might arise when an attorney acts as an agent or intermediary, managing clients' funds or transactions on their behalf, as a mere front man rather than a legal counsel. Indeed, in such cases secrecy would not be effective against orders by the judicial authority, since the actions are not linked to the actual exercise of the right to a defense, within the framework of the right to due process or effective legal protection. Only a weakened right to confidentiality with regard to the financial privacy of the client, if applicable, would remain.

Conversely, when an attorney acts as such, by lending his assistance in or for a case (or even preventing one), whether within the judicial or extrajudicial sphere, given its link with the right to defense, the professional secrecy of the defense attorney safeguards a public order right which is effective erga omnes, such that the confidentiality of the attorney, insofar as it is related to the right to defense, is inviolable. It constitutes a right/obligation on the part of the attorney, and, of course, a right of the client which warrants legal protection.

1.2.2 The purpose of professional secrecy in doctrine.

In terms of doctrine there are two positions, i.e., authors who stress the absolute nature of professional secrecy, which affects all kinds of information known to the attorney and the client, the opposing party or colleagues, as part of professional practice, and authors who curb this absolutism.

Authors who stress the absolute nature of professional secrecy, such as Antonio PLASENCIA MONLEÓN, José RIGÓ VALLBONA, and Hilda María GARRIDO SUÁREZ, contest that secrecy covers all information, news, facts or documents known to or in the possession of the lawyer as part of their professional practice, since there is a presumption that the will of the client is that all of the information submitted should be confidential.

The second group of authors, such as Fernando CALVET GIMENO, María Carmen CRESPO MORA, and Miguel FENECH NAVARRO, point out that professional secrecy should cover hidden facts or things disclosed by the client, which are known to the attorney through his professional practice, whether because the client has declared the information to be confidential or because the attorney himself deems it confidential and which, because of discretion, cannot be disclosed.

2. Exceptions to professional secrecy.

Although there is no list of exceptions in any rules on professional secrecy, below we will briefly talk about the possible limitations or exceptions that currently exist. It is a controversial issue, so the opposing opinions are discussed below.

2.1 Professional secrecy and possible cause for irreparable damage or flagrant injustices.

Looking at the General Attorney's Statute and the Attorney's Code of Practice, we only find references to potential limits of the right/duty of professional secrecy in Article 5 (8) of the Attorney's Code of Practice. This provision lays down the exceptional case where maintaining secrecy could cause "irreparable damage or flagrant injustices" because it affects other legally protected interests. For such cases, the above-mentioned article of the Attorney's Code of Practice establishes that the Chairman of the Bar in question must advise the Attorney.

The solution that the Code offers in these cases is that the Chairman of the Bar should advise "with the sole purpose of guidance and, if possible, establish alternative means or procedures to resolve the problem, taking the conflicting legally protected interests into consideration". Such cases raise the following question: what happens if, in the case at hand, there are no alternatives other than violating secrecy so as not to harm other legally protected interests? The Code offers no solution in that regard other than the "guidance" that the Chairman might offer the attorney faced with such a conflict.

2.2 Professional secrecy and clients' consent.

There are several streams of doctrine in terms of clients' consent.

First (José María MARTÍNEZ VAL), there is a stream of doctrine that holds that a client's consent does not free the attorney from his duty of professional secrecy where there are reasons of moral or general interest that compel the attorney over and above the will of his client.

The second stream (e.g. José RIGO VALLBONA, José SOLDADO GUTIÉRREZ) holds that exemption by the client of the attorney empowers the latter to disclose facts, but does not compel him to do so, essentially because professional secrecy is an attorney's right and duty (Article 542 (3) of the Organic Law on the Judiciary). Furthermore, if the client authorizes the attorney to disclose the professional secret, it is advisable to have such authorization given in writing.

It is worth mentioning that the Code takes the position of the first stream of doctrine, which disregards the will of the client, since Article 5 (8) establishes that the client's consent does not excuse the Attorney from upholding professional secrecy.

2.3 Professional secrecy and the Tax Authorities.

There are also limits and exceptions with regard to professional secrecy within the scope of the Tax Authorities. When it comes to cooperating with and informing the Tax Authorities, Article 93 of the General Tax Act should be borne in mind, namely, Act 58/2003 of December 17, which establishes the obligation to provide the Tax Authorities with all kinds of tax-related data, reports, records, and receipts, even if it is private, non-financial data that may be known to professionals by virtue of their practice and whose disclosure may violate honor or personal and family privacy. Nor shall it cover confidential data of their clients known to them as a result of the rendering of professional consulting or defense services. It should be stressed that professionals may not invoke professional secrecy to prevent the inspection of their own tax situation.

2.4 Professional secrecy and in-house company attorneys.

Based on the Judgment of the Court of Justice of the European Union of September 14, 2010 in the Akzo Case, which stated that professional secrecy is an inherent part of an attorney's independence, the confidentiality of the correspondence between the in-house attorney and the company for which he worked was called into question, due to a possible lack of independence that the employment relationship might entail. However, this was only at Community level and concerned matters of competition law. Nevertheless, since then, the debate has intensified over whether the correspondence of in-house attorneys should be subject to confidentiality, or whether such attorneys are covered by professional secrecy.

In our opinion, there are no reasons for in-house attorneys not to enjoy the same privilege as their colleagues who practice law in other ways.

First, because law practice has evolved and the concept of professional secrecy must be adapted to this new development of the profession. Professional secrecy, as a guarantee of due process, should be applicable to all forms of legal practice. Secondly, in-house attorneys work in the same way as external attorneys, although the latter are likely to do so with greater caution and planning. Thirdly, the financial dependence of in-house attorneys might not be a differentiator either, since attorneys and law firms are also dependent on their clients, which would lead us to doubt the application of privilege to such cases.

2.5 Professional secrecy and conflicts with other legally protected interests.

A question that attorneys often ask is: should the duty of all citizens to prevent certain crimes serve to limit the Attorney's obligation to uphold professional secrecy, if the data and information entrusted to him by the client point to an intention to commit such crimes?

To answer this question, we must refer to Article 450 of the Penal Code. The first paragraph punishes those who are able, through immediate action and without risk to themselves or others, to prevent the commission of a crime that affects a person's life, integrity or health, freedom or sexual freedom, and yet fail to do so. Thus, these legal interests are what is at stake and what is understood to be in need of protection.

The active subject is anyone who is able prevent those crimes "through immediate action" and yet do not do so. This conduct constitutes pure failure to act, i.e., failing to prevent a crime, and is punishable regardless of whether the crime is committed or not.  Following MUÑOZ CONDE, it should be noted that the duty to act is subject to a twofold limit. First, in terms of the possibility of being able to prevent the crime; and secondly, such a possibility needs to be through immediate action and without risk to oneself or others.  Immediate action means any action that may prevent a crime, whether directly, physically and personally, or indirectly (giving warning as appropriate), regardless of whether or not the subject is at the place where the crime would be committed. It does not matter what stage of execution the offence is at, as long as it is already punishable as a crime, although the duty to prevent it ceases when it has already been committed. In such cases, MUÑOZ CONDE does not believe that the duty of professional secrecy is as binding as in other cases. However, the duty of preventing certain crimes should serve as a limit to the duty to uphold professional secrecy. An Attorney who, through the data and information provided by his client, is aware of the imminent commission of an offence – against the life of a person, for example – would be duty-bound to act and this would serve as a limit to the duty to uphold professional secrecy.

It could thus be held that legal interests subject to protection under Article 450 of the Penal Code prevail over the right to a defense and to privacy and, therefore, professional secrecy shall not apply when the commission of a crime that affects a person's life, integrity or health, freedom or sexual freedom must be prevented.

3. Application of professional secrecy in court.

Professional secrecy is manifested in court in terms of exoneration from the duty to testify and of the exemption of the duty to report crimes, which will be explained below.

3.1 Exoneration from the duty to testify: Article 416 (2) of the Criminal Procedure Act.

Article 416 (2) exonerates from the duty to testify "defense attorneys with regard to the facts that defendants may have confided in such attorneys in their capacity as defender".

There are different ways of interpreting the aforementioned rule, and the interpretation made is important since attorneys often act, particularly at the start of their professional relationship with their clients within the criminal justice system, before appearing as defenders in the proceedings in question.

Interpreting it literally in the strict sense would only exempt attorneys already appearing in the proceedings as defender from the obligation to testify and, furthermore, as long as their clients were already on trial. This would mean that the duty of professional secrecy would be constrained to this case, as otherwise (if they had not yet appeared as defenders or if the clients were accused but without an indictment having been issued) nothing would prevent them from being called to testify as a witness "to state everything they know in relation to the questions put to them", including knowledge confided to them by their clients, thereby violating their duty of professional secrecy which, in this case, would clearly be limited.

Furthermore, a person may be summoned to testify, arrested, or even imprisoned without an indictment having been issued. By giving fuel to the strict, literal interpretation of Article 416 (2) of the Criminal Procedure Act, attorneys in attendance at all such proceedings could be compelled to testify, and their right to professional secrecy would once again be limited.

Our opinion does not favor a literal interpretation, given that its wording becomes obsolete if we take into account the fact that the concept of indictment does not exist in all procedures regulated by the Criminal Procedure Act. In addition, the more modern rule laid down in Article 542 (3) of the Organic Law on the Judiciary establishes the duty of attorneys to keep secret all of the facts or news made known to them "as part of any of the aspects of their professional endeavor", and as such they may not be compelled to testify in that regard. Thus, in application of this latter rule, it does not matter whether the attorney has already appeared as a defender, acts as expressly summoned in criminal cases, practices merely as an advisor in other areas of law (civil, commercial, tax, etc.) or whether his client has been called upon to testify, has been arrested or detained, or whether he has not even entered the field of criminal justice, because, in all such cases, the attorney cannot be compelled to testify.

Therefore, a reform of Article 416 (2) of the Criminal Procedure Act is required, in order to provide for the exemption from the duty in line with Article 542 (3) of the Organic Law on the Judiciary.

3.2. Exoneration from the duty to report offences: Article 263 of the Criminal Procedure Act.

Article 262 of the Criminal Procedure Act establishes the obligation to report public offences, but such an obligation does not include attorneys or legal representatives in respect of the instructions or explanations received from their clients, by virtue of Article 263 of the same Act. There is no exemption from the rule on exoneration from the obligation to report offences that may serve, in turn, as a limit to professional secrecy in view of the general obligation to report offences.

Conclusion.

Having analyzed the material covered in this article, we can conclude that it is a controversial topic, since there is no unanimous opinion on the various aspects discussed here. However, some comments should be made by way of a final conclusion.

The client-attorney relationship is based on trust, a sine qua non condition of all relationships between them on which not only professional secrecy, but also the right to privacy, is based, in order to ensure justice is administered correctly. There is no definition of what the purpose of professional secrecy is or what it covers, but our opinion is that it is in line with the second doctrinal position, which holds that it is not absolute and that it can be violated under certain circumstances. There are also a series of exceptions to professional secrecy, which corroborates the fact that it is not absolute. Furthermore, professional secrecy is manifested in court with the exoneration from the duty to testify as set out in Article 416 (2) of the Criminal Procedure Act, the wording of which should be amended given that it is currently obsolete and causes problems with interpretation with the exoneration from the duty to report offences under Article 236 of the Criminal Procedure Act, i.e., that the attorney it not compelled to report public offences made known to him by his clients.

Finally, it is worth noting that more studies and analyses should be conducted to clarify the issue, since it is a highly important topic in the legal world. It is, in our view, as important as clarifications on substantive law, since the law cannot be applied without cause, and there is cause if there has been a prior relationship between attorney and client.

Footnote

1 See Article 5 of the Attorney's Code of Practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.