Digital disconnection in law firms: what Article 88 of Spain's LOPDGDD requires and how the internal policy must look

Emails at midnight, client messages at the weekend, electronic court file notifications at any hour. The law firm is, by the nature of its work, one of the environments where the right to digital disconnection is most strained. And yet the rule has been clear since 2018: Article 88 of Organic Law 3/2018 of 5 December on Personal Data Protection and guarantee of digital rights (LOPDGDD) recognises this right for all employees and public servants, and obliges companies to articulate it internally.

We review what the provision exactly requires and how it translates to the reality of a law firm.

What Article 88 recognises

The first paragraph defines the right: employees and public servants have the right to digital disconnection in order to guarantee, outside the legally or conventionally established working time, respect for their rest time, leave and holidays, as well as their personal and family privacy.

Two ideas matter here. The first: the right is anchored to working time, so its practical limit is set by the registered working day, not by technological availability. The second: protection covers rest, leave and holidays, that is, all time outside the working day, not only public holidays.

How it is specified: collective bargaining or internal agreement

The second paragraph refers the specification of the modalities of exercising the right to collective bargaining or, failing that, to what is agreed between the company and worker representatives, taking into account the nature and object of the employment relationship and promoting work-life balance.

For a firm, this means a declaration of good intentions is not enough: the rules must be negotiated or agreed with staff representation and adapted to the type of work. An on-call criminal lawyer is not the same as a tax lawyer working in campaigns, and the internal policy must reflect that.

The internal policy is mandatory

The third paragraph is the most demanding for the employer: the employer, after hearing worker representatives, must draw up an internal policy addressed to employees, including those in management positions, defining:

• The modalities for exercising the right to disconnection.
• Training and awareness-raising actions for staff on a reasonable use of technological tools that avoids the risk of computer fatigue.

The same paragraph adds reinforced protection: the right to disconnection will be preserved in particular when work is carried out totally or partially at a distance, as well as at the employee's home linked to the work use of technological tools. A point directly connected with the regime of remote work in law firms, which we have already analysed.

Who it applies to inside the firm

The right protects employed staff, and the provision expressly mentions managers, a relevant mention in firms where partners and counsels set the pace of teams. The firm's own employment lawyers know the fit well: firm lawyers are governed by the special employment relationship of Royal Decree 1331/2006, but the Article 88 disconnection right applies to all employees and public servants. Partners and self-employed lawyers, not being in an employment relationship, fall outside its scope of legal protection, although nothing prevents the firm from extending good practices to the whole organisation by internal policy.

Practical keys to implementing it

Beyond formal compliance, a useful policy in a firm usually resolves three fronts. The first, expectations: defining in which cases an out-of-hours email requires an immediate response and in which it does not, and communicating this to clients too. The second, channels: distinguishing between the tool for real urgencies (an on-call duty, an imminent procedural deadline) and ordinary email. The third, example: if managers send messages at any hour, the written policy is of little use, which is why Article 88 expressly includes them among its addressees.

The preventive dimension is not minor either: the computer fatigue the rule asks to avoid is part of psychosocial risk management, connected with occupational risk prevention in law firms.

Frequently asked questions

Is a digital disconnection policy mandatory even for a small firm? Yes. Article 88.3 obliges the employer to draw up an internal policy without setting headcount thresholds, after hearing worker representatives.

Can a client demand an immediate response out of hours? The client relationship does not alter the worker's right: outside their working time, they have the right to disconnect, and it is up to the firm's organisation (on-call duties, shifts, deadline communication) to serve urgencies without eroding that right.

Can staff be contacted during holidays if there is a procedural deadline? The right protects precisely rest, leave and holidays. Prevention comes through prior organisation (delegation of matters, shared deadline registers), not permanent availability.

Does digital disconnection also cover remote work? Yes, with reinforced protection: Article 88.3 preserves the right in particular when work is carried out totally or partially at a distance or from home using technological tools.

More management and compliance guides for firms in our Big law firms section.