In Spain, the concept of "privilege" does not exist as such. However, according to professional conduct regulations, lawyers have the duty not to disclose confidential information or documents obtained in the course of their professional activity. In effect, it takes the shape of a duty owed by the lawyer to their client, but also a right of the lawyer, vis-à-vis the judicial authorities, not to disclose information protected by professional secrecy, and to prevent the seizure by the police or judicial authorities of documents containing such information.

The duty of professional secrecy is established by laws and regulations of varying rank, such as the Spanish Constitution, the General Statute on the Spanish Legal Profession (Estatuto General de la Abogacía Española or EGAE), the Code of Conduct for Spanish Lawyers (Código Deontológico de la Abogacía Española or CDAE), the Code of Conduct for Lawyers in the European Union, the Organic Law of the Judicial Power (Ley Orgánica del Poder Judicial or LOPJ), the Criminal Procedure Act and the Criminal Code.

According to article 22.1 EGAE, professional secrecy covers all the facts, communications, data, information, documents and proposals that a lawyer has become aware of, issued or received through the course of their professional activity. Therefore, both, legal communications and documents prepared by or for lawyers, are duly protected.

Additionally, by virtue of article 5 CDAE, professional secrecy in Spain extends to the following:

• Any facts or information that a lawyer may learn by reason of any of the fields of their professional activity
• Secrets and plans of the client, the opposing party and the lawyer's colleagues
• Any facts or documents that the lawyer may have learned or received by reason of their professional activity
• Letters, communications or memoranda received by the lawyer from the other party
• Conversations held with clients, opposing parties or their lawyers, whether face to face or by telephone or other electronic means. Such conversations may not be recorded unless the parties involved have been given notice and have consented to the recording.

The right and duty to maintain professional secrecy remains even after the services provided to the client have ceased, without limitation in time. Even the death of the client does not result in the lapsing of the right and duty. However, there are a number of exceptions to legal professional secrecy, which are discussed below.

If the lawyer becomes aware of a client's criminal intent, they must disclose this information prior to the commission of the offense. This is because it is generally accepted that the public interest must prevail over the duty to preserve the confidential nature of that information. The intended criminal conduct must be such that it would affect the life, integrity, health, freedom or sexual freedom of any person. A lawyer's failure to act could result in them being held criminally liable, as their conduct would be regarded as an act of concealment.

The accused's lawyers will be exempt under the Criminal Procedure Act from making any statement with regard to the facts that the accused has confided to them in their capacity as legal counsel. A lawyer may also disclose protected information on the basis of necessity, subject to the principle of proportionality and an assessment of the disputed rights, in the following events:

• When keeping the secret may lead to the conviction of an innocent party
• When the lawyer needs to defend themselves against accusations by the client
• When disclosure of the secret is to the benefit of the client

Such an exemption is considered to be justified when the requirements of the Spanish Criminal Code are satisfied, more particularly (i) when the wrong caused is not greater than the wrong that it intends to avoid; (ii) when the situation of necessity has not been deliberately caused by the person concerned; and (iii) when the person facing such necessity does not have, by reason of their business or position, the obligation to forfeit their interests in the interest of others.

The EGAE confers disciplinary powers on bar associations to impose penalties on lawyers who act in breach of the duty of professional secrecy.

In addition, the disclosure of information protected by professional secrecy is classified as an offense under the Spanish Criminal Code, although this offense may only be prosecuted at the request of the injured party.