The Organic Law 5/2024 on the Right to Defence: Legal Ambition with Practical Gaps
On December 4th, the much-anticipated Organic Law on the Right to Defence (“LODD“) will come into force, arriving in the BOE with ambitious promises: accessibility, quality, and ethics within the legal system. This legislation aims to mark a turning point in legal practice in Spain. However, as is often the case, there is a chasm between aspirations and reality. Will this new framework represent genuine progress or remain an exercise in good intentions riddled with practical shortcomings?
Citizens’ Rights: Ambitious Promises with Fine Print
Defence Beyond the Courts: Article 3.7 of the LODD extends the guarantee of defence to out-of-court proceedings such as arbitration, mediation, and conciliation. This approach aligns with the trend towards more efficient conflict resolution mechanisms. The law seeks to safeguard the rights of clients and lawyers in these settings, signifying an evolution towards a more accessible justice system.
However, the law leaves questions unanswered regarding how these protections will be ensured in practice, particularly given the lack of uniformity in the regulation of these mechanisms. While the intention is commendable, the effectiveness of this measure will depend on its implementation and the commitment of competent bodies to enforce it properly.
Strengthening Free Legal Aid: The LODD reinforces several fundamental rights, particularly free legal aid (Article 4.4), which is extended not only to individuals with insufficient financial means but also to groups in particularly vulnerable situations.
Additionally, the law stipulates that legal entities may qualify for free legal aid in specific cases related to insolvency and criminal proceedings. However, significant practical challenges arise.
While the measure is welcomed, verifying insolvency criteria presents a critical issue. The complexity of this verification process risks creating a substantial bureaucratic burden, potentially slowing down an already overwhelmed system.
“Plain Language” as a Right: Another notable element is the inclusion of “plain language” (Article 9). The law mandates adapting judicial language for minors, individuals with disabilities, and those with specific needs. The goal is to democratise justice by transforming the complex legal lexicon into language anyone can understand.
However, the idea of conducting a personalised analysis to determine how each recipient comprehends judicial decisions feels somewhat abstract. And all of this, of course, is expected to be achieved without adding a single minute to the already demanding workload of the judiciary.
Fee Transparency: The law also introduces “guideline criteria” for lawyers’ fees (Article 6.2.e), ostensibly to enhance transparency in legal costs.
The goal is noble: to allow citizens to anticipate litigation expenses.
The reality, however, is more complicated. While these fee guidelines are well-intentioned, they are not without controversy. A notable example is the CNMC’s sanction against the ICAB for publishing guideline fee tables, which it deemed anti-competitive.
With the LODD, the situation shifts significantly, providing a solid legal basis for such guidelines and invalidating sanctions like the one imposed on ICAB. Nevertheless, while framing these guides as fundamental rights to clarity and access to justice safeguards their validity against competition challenges, potential conflicts with the CNMC still loom over their practical implementation.
AI Usage: Between Transparency and Science Fiction
The LODD also introduces transparency in the use of artificial intelligence (AI) in judicial decisions (Article 12.4), theoretically ensuring parties access to the criteria employed. The law’s intention is clear: to promote transparency in an increasingly digitised system.
However, this measure risks being mere lip service without proper implementation. The judicial system’s lack of infrastructure and the difficulty many legal professionals face in understanding AI algorithms could leave this transparency trapped between technical opacity and widespread incomprehension. Not to mention, the law does not establish clear mechanisms to oversee whether platforms comply with this obligation.
While the article is undoubtedly a laudable ideal, it arguably veers closer to science fiction than practical law.
Safeguards for Legal Professionals: Between Protection and Rhetoric
Professional Secrecy: A Fortress with Cracks: The LODD strengthens the protection of professional secrecy (Article 16), a cornerstone of legal practice, by prohibiting the use of lawyer-client communications as evidence in court, except in cases of public interest already provided for.
It strikes an intriguing balance between solemnly proclaiming professional secrecy and carving out exceptions that dilute it.
The law begins by guaranteeing the confidentiality of lawyer-client communications… except when other laws dictate otherwise. Lawyer-to-lawyer communications are also confidential, unless the Criminal Procedure Law finds a basis for disclosure or if the lawyers involved generously consent to their use.
In short, the escape clauses for this protection are so numerous that the norm’s solemnity is undermined.
The issue worsens by failing to include specific references to in-house counsel. This omission creates uncertainty for these professionals, potentially limiting their ability to operate with the same security as their counterparts in independent legal practice.
Work-Life Balance: A Still Distant Goal: One of the most notable (and long-awaited) advancements is the right to work-life balance (Article 14.4), allowing lawyers to suspend court proceedings for personal or family reasons, such as maternity or paternity leave.
However, the law leaves room for judicial discretion in its application, creating uncertainty. While this measure is welcomed, the lack of uniform criteria for its application could lead to inconsistencies, directly impacting lawyers attempting to exercise this right.
This regulatory gap jeopardises the effectiveness of the work-life balance right and leaves professionals vulnerable to disparate judicial interpretations, a problem observed in practice that could undermine the law’s objective.
Relationship Between Lawyers and Professional Associations: Good Intentions with Limited Clarity
Article 21 addresses professional association protection, emphasising the importance of bar associations in safeguarding ethical standards and protecting legal professionals from incidents affecting their practice.
On paper, this represents a step forward in guaranteeing the rights of legal practitioners.
However, the law falls short by not equipping this protection with binding tools to compel judicial authorities to act in cases of violations. Without clear mechanisms, professional association protection risks being an empty promise.
The article concludes by stating that “the procedure for declaring protection will be governed by the applicable regulations for the legal profession,” heightening uncertainty. It delegates all development to unspecified regulations, leaving critical aspects such as deadlines, procedures, and procedural guarantees for those seeking protection up in the air.
Final Reflection
The LODD leaves a bittersweet impression: while it advances in theory, its practical shortcomings and exceptions cast doubt on whether it will bring about real change or merely a legal mirage. For the protection of the right to defence to go beyond a mere statement of intent, it must be accompanied by a tangible commitment to implementation.
