Lex Mundi Global Attorney-Client Privilege Guide |
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Spain |
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| (Europe) Firm Uría Menéndez Updated 08 Oct 2021 | |
| Is the ACP recognized in your jurisdiction? | The attorney-client relationship and documents and communications exchanged between the parties to it are protected in Spain by the general rule of professional secrecy, set out in article 542.3 of Basic Law 6/1985 of 1 July on the judiciary (“Judiciary Law”). This article implements the professional secrecy protection established in article 24.2 of the Spanish Constitution and is further developed by Royal Decree 135/2021 of 2 March on the rules of the Spanish legal profession (“Royal Decree 135/2021”; articles 1.3 and 21 to 24) and the Code of Ethics of the Spanish legal profession (article 5). |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | The attorney-client privilege is recognized in the Spanish jurisdiction following the aforementioned rules. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | The general rule is that any oral or written communication, documents, or other correspondence exchanged between an attorney and their client, opposing parties and other attorneys within the context of an attorney-client relationship must be kept confidential. This rule applies to all information concerning the relationship, including preparatory work, and to all types of services that an attorney may provide in exercising their profession. The duty of professional secrecy continues even after the services provided to the client have been completed, and it is not limited in time (article 22.5 of Royal Decree 135/2021). Any breach of the duty of professional secrecy could lead to the attorney being held criminally liable (article 199 of the Spanish Criminal Code) and to a fine being imposed by the Spanish Bar Association. However, in addition to this duty, the attorney is also afforded the privilege of confidentiality. In addition to that, Spanish law establishes some exceptions to attorney-client privilege that apply to all types of attorneys. Under Law 10/2010 of 28 April on the prevention of money laundering and financing of terrorism (“Law 10/2020”), attorneys must examine any legal advice in any matter they suspect may involve money laundering or the financing of terrorist activities, excluding the advice on a mere determination of the client’s legal position or the defense in legal or administrative proceedings, as in those type of legal advice the attorney-client privilege prevails. In case any suspicion arises, the attorney must refrain from providing any legal advice on that matter. The Spanish regulations also establish the legal duty to report suspicious transactions to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses (known by its Spanish abbreviation "SEPBLAC"). Another exception to the attorney-client privilege is the duty to report to the Spanish Tax Authority (known by its Spanish abbreviation "AEAT") under Law 10/2020 of 29 December, which implements Directive 2018/822 of the Council of the European Union through Law 58/2003 of 17 December on general taxation (known by its European abbreviation "DAC-6"). This particular regulation imposes reporting obligations on attorneys, among others, when advising on certain cross-border tax-planning mechanisms. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | There is not any specific test that would be applied to determine who is considered a client for the purposes of the ACP within a corporate context. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Internal or in-house counsel (i.e. lawyers in a labor relationship governed by the corresponding written labor contract) have the same rights and obligations as external counsel to carry out their professional duties in accordance with the principles of freedom, independence and professional secrecy (Article 39 of Royal Decree 135/2021). Consequently, under Spanish law, both in-house counsel and external lawyers have a duty of confidentiality and professional secrecy. In fact, article 542.3 of the Judiciary Law establishes that all attorneys must keep confidential all information that they have knowledge of as a result of carrying out their professional activities and cannot be required to testify in a court of law with regard to such information. Notwithstanding the foregoing, it should be pointed out that under EU law attorney-client privilege may not extend to in-house counsel in situations such as “dawn raids” carried out by authorities seeking to obtain evidence of anti-trust violations. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Just as we have already mentioned, under Spanish law both in-house counsel and external lawyers have a duty of confidentiality and professional secrecy. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Internal or in-house counsel has the same rights and obligations as external counsel. |
| Is the common interest doctrine recognized in your jurisdiction? | Although Spanish law does not recognize the Common Interest Doctrine, an attorney can be relieved of the duty of professional secrecy in respect of matters exclusively concerning their client if the client has expressly authorized them to disclose that information (article 22.6 of Royal Decree 135/2021). Attorneys may exchange information and documents with each other but they must keep that information confidential without disclosing it to courts, clients or third parties unless they have the express authorization of the other attorney to do so. |
| How is the doctrine articulated in your jurisdiction? | Please see our previous response to the question above. |
| Must a common interest agreement be in writing? | Please see our previous response to the question above. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Spanish legislation has not taken the opportunity of regulating this particular method of litigation financing. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Just as it is mentioned previously, Spanish law establishes some exceptions to attorney-client privilege that apply to all types of attorneys; (i) the one established by Law 10/2010 concerning money laundering and financing of terrorism and (ii) the duty to report to the Spanish Tax Authority under Law 10/2020 of 29 December concerning DAC-6 European regulation. |
| Is the crime-fraud exception recognized in your jurisdiction? | Just as it is mentioned previously, Spanish law establishes some exceptions to attorney-client privilege that apply to all types of attorneys; (i) the one established by Law 10/2010 concerning money laundering and financing of terrorism and (ii) the duty to report to the Spanish Tax Authority under Law 10/2020 of 29 December concerning DAC-6 European regulation. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Please see our previous response to the question above. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Please see our previous response to the question above. |
| What are the elements of the protection in your jurisdiction? | Under Spanish law, any oral or written communication, documents, or other correspondence exchanged between an attorney and their client, opposing parties and other attorneys within the context of an attorney-client relationship must be kept confidential. This rule applies to all information concerning the relationship, including preparatory work, and to all types of services that an attorney may provide in exercising their profession. |
| Does your jurisdiction recognize an accountant-client privilege? | Law 22/2015 of 20 July on account auditing establishes the duty of professional secrecy in accounting. |
| Does your jurisdiction recognize a mediation privilege? | Law 5/2012 of 6 July on mediation in civil and commercial matters establishes that mediation procedures must be kept confidential. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Just as is mentioned previously, attorneys may exchange information and documents with each other but they must keep that information confidential without disclosing it to courts, clients or third parties unless they have the express authorization of the other attorney to do so. |
Lex Mundi Global Attorney-Client Privilege Guide
The attorney-client relationship and documents and communications exchanged between the parties to it are protected in Spain by the general rule of professional secrecy, set out in article 542.3 of Basic Law 6/1985 of 1 July on the judiciary (“Judiciary Law”). This article implements the professional secrecy protection established in article 24.2 of the Spanish Constitution and is further developed by Royal Decree 135/2021 of 2 March on the rules of the Spanish legal profession (“Royal Decree 135/2021”; articles 1.3 and 21 to 24) and the Code of Ethics of the Spanish legal profession (article 5).
The attorney-client privilege is recognized in the Spanish jurisdiction following the aforementioned rules.
The general rule is that any oral or written communication, documents, or other correspondence exchanged between an attorney and their client, opposing parties and other attorneys within the context of an attorney-client relationship must be kept confidential. This rule applies to all information concerning the relationship, including preparatory work, and to all types of services that an attorney may provide in exercising their profession.
The duty of professional secrecy continues even after the services provided to the client have been completed, and it is not limited in time (article 22.5 of Royal Decree 135/2021).
Any breach of the duty of professional secrecy could lead to the attorney being held criminally liable (article 199 of the Spanish Criminal Code) and to a fine being imposed by the Spanish Bar Association. However, in addition to this duty, the attorney is also afforded the privilege of confidentiality.
In addition to that, Spanish law establishes some exceptions to attorney-client privilege that apply to all types of attorneys.
Under Law 10/2010 of 28 April on the prevention of money laundering and financing of terrorism (“Law 10/2020”), attorneys must examine any legal advice in any matter they suspect may involve money laundering or the financing of terrorist activities, excluding the advice on a mere determination of the client’s legal position or the defense in legal or administrative proceedings, as in those type of legal advice the attorney-client privilege prevails. In case any suspicion arises, the attorney must refrain from providing any legal advice on that matter. The Spanish regulations also establish the legal duty to report suspicious transactions to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses (known by its Spanish abbreviation "SEPBLAC").
Another exception to the attorney-client privilege is the duty to report to the Spanish Tax Authority (known by its Spanish abbreviation "AEAT") under Law 10/2020 of 29 December, which implements Directive 2018/822 of the Council of the European Union through Law 58/2003 of 17 December on general taxation (known by its European abbreviation "DAC-6"). This particular regulation imposes reporting obligations on attorneys, among others, when advising on certain cross-border tax-planning mechanisms.
There is not any specific test that would be applied to determine who is considered a client for the purposes of the ACP within a corporate context.
Internal or in-house counsel (i.e. lawyers in a labor relationship governed by the corresponding written labor contract) have the same rights and obligations as external counsel to carry out their professional duties in accordance with the principles of freedom, independence and professional secrecy (Article 39 of Royal Decree 135/2021).
Consequently, under Spanish law, both in-house counsel and external lawyers have a duty of confidentiality and professional secrecy. In fact, article 542.3 of the Judiciary Law establishes that all attorneys must keep confidential all information that they have knowledge of as a result of carrying out their professional activities and cannot be required to testify in a court of law with regard to such information.
Notwithstanding the foregoing, it should be pointed out that under EU law attorney-client privilege may not extend to in-house counsel in situations such as “dawn raids” carried out by authorities seeking to obtain evidence of anti-trust violations.
Just as we have already mentioned, under Spanish law both in-house counsel and external lawyers have a duty of confidentiality and professional secrecy.
Internal or in-house counsel has the same rights and obligations as external counsel.
Although Spanish law does not recognize the Common Interest Doctrine, an attorney can be relieved of the duty of professional secrecy in respect of matters exclusively concerning their client if the client has expressly authorized them to disclose that information (article 22.6 of Royal Decree 135/2021).
Attorneys may exchange information and documents with each other but they must keep that information confidential without disclosing it to courts, clients or third parties unless they have the express authorization of the other attorney to do so.
Please see our previous response to the question above.
Please see our previous response to the question above.
Spanish legislation has not taken the opportunity of regulating this particular method of litigation financing.
Just as it is mentioned previously, Spanish law establishes some exceptions to attorney-client privilege that apply to all types of attorneys; (i) the one established by Law 10/2010 concerning money laundering and financing of terrorism and (ii) the duty to report to the Spanish Tax Authority under Law 10/2020 of 29 December concerning DAC-6 European regulation.
Just as it is mentioned previously, Spanish law establishes some exceptions to attorney-client privilege that apply to all types of attorneys; (i) the one established by Law 10/2010 concerning money laundering and financing of terrorism and (ii) the duty to report to the Spanish Tax Authority under Law 10/2020 of 29 December concerning DAC-6 European regulation.
Please see our previous response to the question above.
Please see our previous response to the question above.
Under Spanish law, any oral or written communication, documents, or other correspondence exchanged between an attorney and their client, opposing parties and other attorneys within the context of an attorney-client relationship must be kept confidential. This rule applies to all information concerning the relationship, including preparatory work, and to all types of services that an attorney may provide in exercising their profession.
Law 22/2015 of 20 July on account auditing establishes the duty of professional secrecy in accounting.
Law 5/2012 of 6 July on mediation in civil and commercial matters establishes that mediation procedures must be kept confidential.
Just as is mentioned previously, attorneys may exchange information and documents with each other but they must keep that information confidential without disclosing it to courts, clients or third parties unless they have the express authorization of the other attorney to do so.