May 14, 2020
Ph. D. Nielson Sánchez Stewart
On May 9th, 2019, and after more than three years of work, the General Council of Spanish Lawyers, Consejo General de la Abogacía Española (CGAE), the body that coordinates the activity of the 83 Spanish Bar Associations, approved a new Code of Conduct to take effect nationwide.
It was a necessary step to update the regulation of the Legal Profession. That the profession is constantly undergoing profound changes is not a phenomenon that goes unnoticed and the current changes are perhaps the most important ones in its long history. The considerable increase in the number of practitioners, the sometimes insufficient preparation of those who begin their practice, the increase in the proportion of women who embrace the legal profession, the elimination of the barriers that traditionally existed to prevent or hinder the practice outside the borders are causes, among other factors, of this transformation. These changes and the convergence of counselling and advocacy activities with other professionals of different views, backgrounds and training determined the need to carry out a profound revision of the norms that regulate the profession, norms that for years remained unchanged and were transmitted from generation to generation in the privacy of law firms.
The express process of formulation of the regulation began several decades ago. The former Assembly of Deans of the Council in a session held on May 28th and 29th, 1987 approved the so-called “Deontological Standards of Spanish Law”. In another Assembly of Deans of June 29th, 1995, some modifications were introduced and the body was called the “Code of Deontological Conduct”, the first of the Spanish Legal Profession.
The codification of the so-called “standards of behaviour” has been debated, doubting their legitimacy, arguing that they violate the necessary independence and have limited effectiveness. In formulating these criticisms, it is assumed that they are not authentic legal norms, but rather moral or social recommendations. This is not true and has already been declared by the Constitutional Court, which has classified them as strictly legal. It is true that they have an ethical or moral inspiration, but that is common to other legal provisions, such as the Penal Code, without going any further.
The organization of the profession has changed and it has become necessary to adapt the rules of behaviour to these changes. Many of the 1987 norms were becoming prematurely obsolete and in 2001 a new General Statute of the Spanish Legal Profession was approved, which repealed the one from 1982. Many venerable institutions disappeared upon the introduction of the rule of law and the new conception of a Lawyer, not only as an auxiliary to justice, but as one of its main actors and its inclusion in society to provide a service of public interest and under free competition.
In 2002, a Code of Conduct was approved, replacing that of 1987, which has been in force until now. However, in the almost twenty years that have elapsed, there was a need to adapt it to the times.
The CCBE, constituted as the highest representative body of the Legal Profession before the institutions of the European Union, had approved a “Code of Ethics” at its plenary session in Strasbourg on October 28th, 1988, modified at a session held in Lyon (France) on November 28th, 1998. The purpose of this Code was to establish rules of conduct in cross-border professional practice. Said Code was “assumed” by the CGAE. In accordance with the provisions of paragraph 1.3 of the Code, its objectives were to define “common rules applicable to all Lawyers of the European Union and the European Economic Area in their cross-border activity, whichever the Bar Association they belong to”.
This Code – although in force in Spain – upon the assumption by the General Council has a restricted scope of application – ratione materia is the expression it uses – to cross-border activities.
The codification process has not finalised yet and today a phenomenon is underway that is inverse to the trend of localization in infra-national areas of ethics. In the European Union, work is currently being done on the drafting of common Codes of Ethics that will be applicable, at least, in countries whose legal systems come from a common root, notably Italy, France, Portugal and Spain. This good will and desire should be used not only to formulate general principles that are already sufficiently set, but also to try to conjoin new ones taking advantage of the conjunction of international experiences that can serve as basis for comparison as a study method.
In parallel, the CCBE periodically reviews the rules applicable to cross-border practice, which, while still exceptional, will inexorably increase as the European Union and the European Economic Area expand and international traffic increases.
Attempts to create a single Code of Ethics applicable, ideally, to all Lawyers in the world or at least to all Lawyers practicing within the Union, face the natural scruples of countries that have maintained traditional criteria, who have resisted their revision to bring them to a common heritage. A good example turns out to be the professional secret that in some countries, Spain among them, has a public origin closely linked to the special function that the Lawyer develops in society both in the defence aspect, as guarantor of that fundamental right, and in the variant of legal adviser whose activity is part of the right to confidentiality. On the contrary, in other countries, professional secrecy is nothing more than an obligation that arises from the specialties determined by the convention, contract or agreement that discipline the relationship between Lawyer and client. Another example is the remuneration system, with acceptance or rejection of the quota litis agreement, the division of fees and payments for attracting customers. Despite this resistance, it is inevitable that in a globalized world, the application of general solutions will be sought, solving in an intelligent and generous way the difficulties that occur today. Thus, the confidentiality of correspondence between Lawyers, which in some countries is absolute, as in Spain, in others only applies if that attribute is referred to in its text, as occurs in the United Kingdom, and in others, such as Italy, it also applies, unless otherwise indicated in the correspondence. In these times we live in, when correspondence circulates daily outside borders, such a paradoxical situation cannot last long.
The synergies of the Lawyers of the surrounding countries must be used to jointly advance in the formulation of updated norms and not only insist on the formulation of already accepted principles.
In 2016 work began on this new Code of Conduct by the Deontology Commission of the General Council of Spanish Lawyers. The alternative of approving a totally new text or, on the contrary, introducing certain modifications to the current one was considered: this second possibility was chosen so as not to lose the valuable collection of administrative precedents and judicial decisions.
In the elaboration of the new Code, the then current General Statute of the Spanish Legal Profession and the project that was also approved by the Council pending ratification by the authorities, have been taken into account. Although this project is not yet a standard since the concurrence of the administration is required, it does reflect the feeling of the profession and it is hoped that once the difficulties experienced in Spain in recent years have been overcome, it will not take too long to be finally approved.
The existence of the Code of Conduct – as long as they do not restrict competition and is established for the benefit of service consumers and society in general – is not objectionable to competition authorities. This has been stated by the former Competition Court in its famous “Report on the free exercise of professions, Proposal to adapt the regulations on collegiate professions to the free competition regime in force in Spain in June 1992” that gave rise to an important modification in the Law of Professional Institutions.
Already in May 2003, the European Commission announced the preparation of a proposal for a Directive on services in the internal market that would be released before the end of that year. Paragraph 39 of the proposed Directive encourages Member States to adopt uniform codes of conduct. This Directive is known as the Bolkestein Directive which included an important phrase: “Member States, in collaboration with the Commission, should be expected to encourage stakeholders to draw up codes of conduct at Community level, especially with the aim of promoting quality of services taking into account the peculiarities of each profession. The codes of conduct must be in accordance with Community Law, and especially with Competition Law. They cannot be contrary to the binding legal provisions on ethics and professional conduct that are in force in the Member States.”
The evolution of standards of conduct will continue because it will be necessary to adapt them to the new times that are characterized by a different legal profession than the traditional one. Extrajudicial and preventive activity is more and more important, the scope of work is constantly expanding and encompasses territories regulated not only by different laws but by different ethical standards; the conflict between individuals has ceased to be in many cases the fundamental field of work since today public administrations have invaded everything. Finally, relations with other professionals who carry out activities similar and sometimes identical to those carried out by the Legal Profession are becoming more frequent every day, the preferential dedication of which is tax law, urban law and labour law. The practice of the profession has changed in the sense that each day it is more common that one no longer configures oneself as an independent professional, but rather as an employee for another office, for a company or for a private individual who is not from the profession. In this way, one will become a lawyer for a single client. At the same time, it is increasingly observed that organizations of collective representation or with multiple interests provide through a professional, legal advice, consumer groups, unions, public bodies. The relationship with these third parties who are not exactly clients, but rather members of the group for which they provide services, must be subject to ethical regulations.
On the other hand, the areas of legal advice, which are common to the legal profession and to other professionals, have determined the existence of so-called multidisciplinary or multiprofessional law firms that should be subject to specific regulation.
The deontological norm – legal as it has already been insisted – is of obligatory compliance and its violation brings with it a sanction. There is no doubt about this in Spain. There are, however, some peculiarities that characterize it and which have been the subject of judicial debate and analysis by the Courts.
There is no law that regulates the legal profession in our country. The rules are spread across many scattered texts, some of which do not have a category of law. The one that regulates the Bar Associations does not contain a table of misdemeanours or a list of sanctions, but attributes to these bodies in their territorial scope the function of: “… practicing disciplinary authority in the professional and collegiate order”
The violation of the principle of legality of the ethical standards contained in the Codes has therefore been discussed, because they would not in themselves define typical conducts and because they do not meet the requirements of publication in an official journal. Legality, typicality and publicity, are conditions applicable to the punitive and restrictive norm of rights. It has been said that this lack of publication in an official paper would deprive them of compulsory force and of authentic legal status. The Constitutional Court has indicated that there is a relationship of special abidance of the collegiate with their Bar Association, which is precisely what allows reducing the requirement of reserving strict law. Reduce it only, but not do without it. It is necessary for the sanctioning regime to have a legal basis even if the infractions and sanctions are not defined in detail in the law. It is therefore possible that, due to this special relationship of dependency, assumed by the collegiate when applying for admission to the profession, that the actions and sanctions are not defined by law as long as the law refers them to a norm of lower rank.
Thus, the universally accepted principle of nullum crime nulla poena sine lege is respected today. The so-called typicality, the requirement that the conduct be perfectly defined in the norm, is satisfied in Spain with the so-called “predictability” of the norm in the face of the lex certa requirement, since this requirement is not violated by facts, omissions or punishable conduct “By means of undetermined legal concepts, as long as their concretion is reasonably feasible by virtue of logical, technical or experience criteria and allows foreseeing with sufficient security, the nature and essential characteristics of the behaviours constituting the typified infringement”.
The new Code is not the culmination of ideal standards to regulate the profession. It is the updating of the needs to face various current phenomena, such as payment for attracting customers, distribution of fees with third parties outside the profession, the limitations imposed on professional secrecy, the advertising of services, the substitution in performance and relationships that arise between who provided the advice and defence and who takes it over, the second opinion, the obligations to liquidate the funds received and many others.
We have already started work on its update.