SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Pedro Echeguren, Lopez-Ibor DPM
The Code of Ethics of the Spanish Legal Profes- sion (CESLP) establishes the proper behaviour of lawyers in Spain. These duties can be sum- marised in two types of action: identification and information. These actions are established in Section 87 of the General Statute of the Span- ish Legal Profession (GSSLP). Relationship Between Lawyer and Client Section 87 regulates the relationship between lawyer and client, together with the lawyer’s obli- gations. In addition to those obligations arising from their contractual relationship, lawyers are obliged to fulfil the defence mission entrusted to them with the utmost caution and diligence, as well as keep their legal privilege. Lawyers are also required to diligently carry out the profes- sional activities needed for the defence of the matter entrusted to them, complying with the technical, ethical and deontological require- ments appropriate to the legal protection of the matter. In doing so, lawyers may be assisted by collaborators and other colleagues who act under the lawyers’ responsibility. Lastly, lawyers shall identify themselves to the person they are advising or defending, even when they are doing so on behalf of a third party, in order to assume the civil, criminal and ethical responsibilities that may be applicable. Lawyers’ Obligations In the exercise of the profession, lawyers must take into account the requirement of “lex artis”. This concept refers to the proper conduct of professionals and can be defined as a set of technical rules of conduct in the exercise of their profession. Lawyers undertake an obligation of means in the sense that they are obliged to carry out their activities with due diligence and in accordance
with the lex artis, without guaranteeing or com- mitting to the result. Furthermore, the Supreme Court of Spain, in its judgment of 23 May 2001, Appeal No 914/1996, included among lawyers’ obligations the obliga- tion to inform the client of the “pros and cons”, the risk of the case or the convenience or other- wise of judicial access, together with the costs, the seriousness of the situation and the prob- ability of success or failure. Parties may initiate pre-trial proceedings in order to prepare a future legal action. These pre-trial proceedings consist of a request for measures known as preliminary proceedings ( diligencias preliminares ), whose essential aim is to assist the party in gathering relevant documentation and which are subject to the payment of a cau- tion. 4.2 Early Judgment Applications The possibility of early judgment or cases being struck out before the substantive hearing is not contemplated in Spanish legislation. 4.3 Dispositive Motions Frequent dispositive motions include prelimi- nary proceedings (see 4.1. Interim Applications/ Motions ) or the seeking of injunctive relief. 4.4 Requirements for Interested Parties to Join a Lawsuit 4. Pre-trial Proceedings 4.1 Interim Applications/Motions The SCPA provides for the possibility of third parties joining the proceedings if they have a direct and legitimate interest in the outcome of the proceedings.
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