Communications between lawyers and clients: privileges and protections

Under article 4 of the Spanish lawyer’s Code of Conduct, the relationship between client and lawyer is based on confidence and requires that the lawyer’s professional conduct is trustworthy, honest, loyal, true and diligent. According to the Spanish Supreme Court, confidence is the base of this relationship, and the lack thereof will cause its termination.

In respect of the protection and privilege of communications between lawyers and clients, the first consists consist of professional privilege and the second is the right to confidentiality.

There is no unanimous view in relation to professional privilege, although it may be defined as

the duty members of some professions such as doctors, lawyers, notaries, etc. have not to disclose the facts known as part of the exercise of their profession

Despite the simplicity of this definition, professional privilege is one of the most difficult legal concepts, both to understand and to apply.

Spanish legislation considers professional privilege as right and duty of lawyers. Its object is described in article 5 of the Spanish lawyer’s Code of Conduct and includes all secrets and proposals from client, the other party, colleagues, and all facts and documents known or received due to any form of the lawyer’s professional intervention. Moreover, it is established that:

Conversations with clients, other parties or their lawyers, in person, by telephone or online, shall not be recorded without previous notice and approval of the participants. They will, in any event, be protected by professional privilege

The key element to determine whether information is protected by professional privilege or not, and therefore whether the lawyer must disclose it if required by the judicial authorities, is the characteristics of the professional activity. This means that when the lawyer is mainly acting as an agent or intermediary, for example managing funds or making transactions on behalf of the client, it may not be protected by professional privilege. However, when a lawyer is assisting a client in a set of proceedings, due to its link with the right to a defence, the information exchanged is protected by confidentiality and professional privilege.

Some exceptions to professional privilege are currently in place:

  • When keeping the secret may cause irreparable harm or flagrant injustices.
  • Consent from client. However, there are discrepancies as some sectors consider the client’s consent irrelevant in respect of professional privilege.
  • In some examples in connection with the Tax Administration.

Confidence is the basis of the relationship between client and lawyer, and professional privilege is a big part of that, together with the right to privacy. Due to the extremely high importance professional privilege has in the judicial process, more reports and analysis should be carried out in order to clarify and define its object.

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