Tag: Spain

Access to Justice in Covid-19 Pandemic Times in Spain

May 18, 2020

Juan Nunez

The terrible Covid-19 pandemic in which we are involved, not only in Spain, but throughout the world, will have relevant legal consequences, as we already all know. The inevitable economic crisis derived from this pandemic will affect several legal aspects and principles.

After my opinion, the most affected will be

  • the general theory of contracts,
  • the insolvency situations and
  • the labor relationships

Referring to the theory of contractsa lot of legal relationships will be affected because it will very difficult for one of the parties to continue complying with an agreement signed under circumstances having radically changed.

A huge number of contracts will be under this situation.

Without forgetting the principle of “pacta sunt servanda” (agreements have to be fulfilled) legal remedies will have to fit the principles of “force majeure” and “rebus sic stantibus” (restoration of an agreement that has turned unbalanced by unpredictable events), to settle these issues.

On the other hand, and due to this situation, a lot of companies and individual entrepreneurs will come into unavoidable financial difficulties. For these cases, our law has rapidly react retarding any deadline to lodge any proceeding of insolvency until the end of the year, to allow the entrepreneurs to try to recover their business.

Finally, all this situation affects employment; thousands of people losing their work and claiming their rights. In spite of the measures that have been implemented to suspend or reduce work, a lot of business will not be able to resist. Courts, as all other activities that can concentrate lot of people, has been almost entirely stopped, and only urgent matters are to be attended. Access to justice has been organized for when the state of alarm will be over, and some measures have been adopted to manage with all the conflicts that are arising during this period without normal working Courts.

The measures to organize the Courts in order to confront the effects of Covid–19 are about (1) procedural measures, (2) insolvency measures and (3) technological measures.

  1. The goal of the procedural measures is to discharge concentration of lawsuits to be filed. The most polemic procedural measure implied is to active the period between 11 and 31 August, while August has been always Court holidays. Additionally, all the time schedules and deadlines of the different matters and procedures that may have been suspended will, either re-start entirely again, or be enlarged considerably, to avoid the collapse, and to allow to attend, until the rest of the year 2020, some priority matters, like:
  • Issues with minors
  • Conflicts on stoppage of mortgages or rentals.
  • Conflicts on public aids or subsides related to pandemic.
  • Conflicts on labor relations, due to pandemic measures.

2. On insolvency measures, the law wants to give an especially long time bar period to organize again and to refloat the business until end of the year 2020. During this lapse of time, no insolvency claims from creditors will be accepted, giving time to the debtor to file his own insolvency proceedings.A special time bar of one year has been adopted to allow debtors to negotiate once again their payment conventions.During one year after termination of the estate of alarm, only urgent issues will be solved.

3. Finally, the law implies technological measures to reduce presence organizing hearings on-line, and reducing present formalities as much as possible.

This means the implementation of technological tools at any court, which is still a pending challenge; al least, it will be a benefit that will remain. In general, rules have been implemented to refrain the effect of the wave of proceedings, in the confidence to speed the proceedings, and to avoid physical contact.

However, the number of proceedings will be extremely high; even if at this moment the tribunals only work in urgent matters, the filing of lawsuits is possible; some 2.500 proceedings have been already filed at Barcelona’s Courts.

And these new proceedings, and the new ones during and after the state of alarm, arrive to a judicial system which is already collapsed. Nowadays, before the pandemic, hearings in some tribunals were already being appointed over six to nine months, or even more.

It is often said that late justice is not justice, and therefore, the access to justice will be not satisfactory.

Some rules implemented for the pandemic effects, oblige consumers and providers of services and goods to try to reach agreements for adaptation of their relationships to the situation for 60 days before resolving, when the agreement could or may not be fulfilled properly (for instance, closed fitness clubs, closed learning centers, concerted weddings and celebrations, lack of deliveries). It is clear that countless lawsuits will be filed because of contractual relationships, in which the parties have not reached an agreement.

An already collapsed justice cannot afford this new situation, and it is time for intensively promote mediation and arbitration.

We, lawyers, have to lead the way to provide justice by promoting agreements out of courts between the parts in conflicts. It is clearly time now to let mediation and arbitration display their advantages. It will be the only way, in most of the cases, to obtain not only justice, but satisfactory results for the parties.

We have to keep in mind, however, that these ADR means should be a choice and not a necessity, since the citizen shall have the right of access to justice; of course, we are confronted to an extraordinary and unpredictable situation, but the citizen will suffer more than if the system were not already so overloaded. This happens when justice is not a priority for the governors.

The situation of criminal proceedings is quite different; of course, all these rules do not affect to proceedings in which fundamental rights could be affected. For those files, courts have maintained their activity.Procedures of habeas corpus, incidents with prison conditions and permissions, gender violence, and all non-delayable issues are treated.

However, there are some issues affecting substantial rights, like the provision implemented by the Royal decree declaring the state of alarm, by suspending the deadline of prescription of all acting’s and rights, without further clarification: the problem is that, since no more clarification was made, we do not know if this suspension means an enlargement of the statute of limitation of delicts. In fact, it should not, since the access of justice during that time is possible for urgent matters, and because this interpretation would affect constitutional rights, but the debate is open.

A new Code of Conduct for the Spanish advocacy

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.

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