Spanish Right of Defence Act 5 of 11 November 2024 (Ley Orgánica del Derecho de Defensa, “LODD”) focuses on the need to create a single legal text to regulate and guarantee the right to a defence recognised under Article 24 of the Spanish Constitution. This right allows both private individuals and corporations to exercise their legitimate rights, freedoms and interests in the context of any kind of dispute brought before the courts or public authorities, and to extend those rights, along with assistance from a lawyer, to extra-judicial proceedings and disputes that are heard by the various alternative forums for conflict resolution.

This legislation is also aimed at guaranteeing and strengthening the fundamental right to a defence, in line with new legal and procedural challenges.

The most significant aspects of this new legislation are set out below:

a. Substance of the Right to a Defence

The Right to a Defence includes the provision of assistance or advice on the Law from legal counsel and the defence of a private individual’s or corporation’s legitimate interests during the proceedings provided for in law, along with advice prior to the potential initiation of such proceedings.

This right includes, in all cases, (i) free access by all citizens to the courts and to a process without any undue delay, (ii) the right to receive a reasoned decision from an ordinary and impartial judge, (iii) the right to receive communications drafted in clear, simple and accessible language, (iv) the right to an interpreter and/or translator, (v) the right to be heard, to be informed about and to object to any claims filed by the other party, (vi) the right to defend one’s case using pertinent items of evidence and, in short, (vii) the right to a public process with every guarantee in a manner that does not in any way prevent one from mounting a defence.

b. Legal advice

The legal advice offered must be sufficient and effective, and it must be provided by a professional lawyer with up-to-date training who can guarantee quality and ensure access to the Justice Administration. They must be able to take the necessary actions and make any adjustments that may be required, using the technical, human and professional resources available, in a way that will allow people with cognitive difficulties to exercise this right.

In turn, everyone will have the right freely to select a professional to assist them in their defence, along with the right to dispense with their services, notwithstanding any exceptions that may be provided for in law for justifiable reasons. Thus, when the situation arises in which one professional lawyer is replaced with another, the appropriate measures will be taken to ensure that the latter has access to all the information he or she deems necessary in order to manage their defence.

c. The right to information

Professional lawyers must act freely and independently and must under no circumstances be affected by a conflict of interest. In this regard, and with the aim of acting in accordance with the principle of transparency, the LODD reinforces the point that any person exercising their right to a defence must be informed by the lawyers involved in a clear, simple, comprehensible and accessible way regarding (i) the seriousness of the conflict as regards the interests and rights affected, (ii) the viability of the arguments and the possibility of applying suitable strategies and measures to resolve disputes, (iii) the current status of the matter in hand, (iv) the general cost of the proceedings, and (v) the consequences of any potential award of costs.

d. Guidelines prepared by the official bar associations

Article 6.2.e) of the LODD establishes that “the official bar associations may draw up and publish objective and transparent guidelines that make it possible to quantify and calculate the reasonable amount of their fees for the sole purposes of inclusion in an assessment of costs or an action to recover fees. This is an essential provision, in that for the first time it ensures that users of the justice system will have the right to be informed in advance of the costs associated with a particular legal process.

Prior to this, bar associations had offered both clients and lawyers non-binding criteria in the form of guidelines regarding fees and the possible financial consequences of legal proceedings. However, in its judgment 4841 of 19 December 2022, the Spanish Supreme Court argued that the guidelines prepared by the bar associations were contrary to the Spanish Anti-Trust Act: “(…) lists showing the price of each action by lawyers serve to discourage free competition in the marketplace for the professional services offered by lawyers, in that they tend to homogenise fees when it comes to making an assessment of costs (…)”. In this regard it turned to the Professional Associations Act, which provides for the creation of guiding criteria “for the sole purpose of making an assessment of costs and taking action to recover lawyers’ fees”.

As a consequence, in finding that the guiding criteria applied by the bar associations did not strictly refer to the calculation of the relevant amounts in an assessment of costs or the recovery of legal fees, these criteria were found to be invalid and to create a situation of legal uncertainty. This situation has now been corrected by the LODD, which authorises the official bar associations once again to set out guiding criteria solely for the purposes of assessing costs and recovering fees.

e. Guaranteeing the confidentiality of communications

The LODD places particular emphasis on the importance of confidentiality with regard to communications and professional secrecy. All communications exchanged between a lawyer and his or her client are confidential, as are the communications exchanged between the counsels acting for each party, except in cases in which they may be revealed in law, or when an express and explicit warning has been given that they may be used in court. Until now, revealing communications between lawyers has been proscribed on ethical grounds. However, under the LODD this is now prohibited by law, meaning that the consequences of producing communications between lawyers as evidence in court is no longer just an act with ethical implications and disciplinary consequences, it will now affect the validity in the proceedings of the document that has been improperly revealed.

The official bar associations serve as an institutional guarantee of the right to a defence, ensuring that members of the legal profession properly comply with ethical standards.

In conclusion, we believe that the incorporation into law of the rights described above, which further add to and form part of the right to a defence, are principally aimed at benefitting users of the Justice Administration by regulating certain fundamental issues which have, until now, not been set down in law. We can therefore conclude that the introduction of this Act will contribute to the establishment of greater legal certainty in interactions between these users and the courts of all jurisdictions, which will in turn help to improve the efficiency and accessibility of this public service.

In addition, the rights and obligations of legal professionals are, for the first time, established and regulated in a provision set down in law, both within their professional working sphere and in their relations with the parties that they represent. Lawyers are thus recognised as playing an essential role in ensuring compliance with the requirements of the Constitution, in that they are the only people charged with legally defending ordinary citizens, something that represents a significant milestone.