The Legal Profession in Spain: the decline of our principles?, Rodrigo Uría

Uría Menéndez chairman, Rodrigo Uría, believes that current reforms in Spain threaten the basis of the legal profession.

En este artículo, Rodrigo Uría, socio presidente de Uría Menéndez, nos comenta los últimos cambios acaecidos en la profesión. La forzosa «laboralización» de los abogados como empleados, el proyecto de la ley de Sociedades Profesionales, y, como consecuencia, la ley de Acceso a la profesión de abogado y procurador de los Tribunales hacen que se replantee el porvenir incierto de los principios nucleares de la Abogacía. Uría se pregunta cómo puede proteger el secreto profesional del abogado, salvaguarda de la tutela judicial efectiva cuando, en una sociedad anónima profesional multidisciplinaria, los abogados solamente poseen el 25% del capital, los economistas son los accionistas de otro 25% y el resto está en manos de inversores financieros.

The legal profession in Spain has historically been independent and self-regulating, managing an affordable service to defendants, as well as cooperating with the Judiciary in order to realise the constitutional principle of effective legal protection.

We know very well the core principles that govern the way we work: independence, confidentiality or professional secrecy, and the duty to avoid conflicts of interest.

These principles are fundamental to the legal profession, which together with the values of fairness, diligence, honesty and collegiality make up the professional deontology that is the essential basis of the Spanish Bar Associations. In effect, compliance with deontological rules, and the disciplinary sanctions in the case of non-compliance, are the prime objective of our Bars, very much above, in my opinion, that of representing and defending our corporate interests.

This has been, and still is, the basis of the system of self-regulation for the Spanish legal profession, very similar to those of the other developed countries. A system that has allowed the Spanish legal profession to reach the highest levels of quality and prestige that are to be found today in Europe and beyond. But for how much longer this will be the case, who knows?

Today, the forced “labourisation” of lawyers as employees, the draft law on Professional Associations Companies and, to a certain extent, the Law on Access to the Legal Professions point to an uncertain future for these basic principles. The change being proposed gives rise to some difficult issues.

Universities – which have historically failed in the practical education of law graduates – will take responsibility for the professional training of our young lawyers. Do we believe that they are capable of establishing, from nothing, the training courses required by the Law of Access?

This may be difficult as only 50 of the lecturers for these courses will have to be practising lawyers. Why not 100%? And what worth has a lecturer on professional practice if, as proposed, he has only 5 year’s experience?

Under the proposed reforms, lawyers will be able to work with other professions within a professional multidisciplinary limited company (MDP), with the possibility of receiving external investment. How does one protect the professional secrecy of the lawyer, which is the safeguard of an effective judicial system, in a professional multidisciplinary limited company (MDP) in which the lawyers have 25% of the capital, economists another 25% and the rest is in the hands of financial investors?

Surely, it is difficult to reconcile a lawyer’s professional secrecy within an organisation where they hold 25% of the capital and auditors have 75%. Far from being bound by secrecy, auditors must inform shareholders and stock markets of the reasoning behind their professional judgment.

What would be the independence of the lawyers in these examples? Would they work with hundreds of Chinese walls?

I am left wondering why the Government has not accepted that MDP’s should be governed by the most strict deontological code from among those of different associated professions.

Other difficulties will arise. What happens if a law firm, as an MDP, floats 25% of its capital on the stock market, and incompatible companies or competitors of clients of that law firm, subscribe to it? How would they reconcile the duty of secrecy of the legal profession with the requirements of stock market disclosure? Can a law firm make its clients public to attract investors?

It is not clear how much time the Government will take, once the Law of Professional Associations Companies is in place, to establish an effective regulation to balance the incompatibility – as harshly manifested in the Enron case – between lawyers and auditors.

We trust that the answers will not be on the lines of “blowing in the wind”, as in the very beautiful song of Bob Dylan, and that replies to these and so many other questions will fill us Spanish lawyers with confidence. We need it.

Rodrigo Uría is the Chairman of Uría Menéndez.