Organic Law on the Right of Defence: the rights and duties it sets for lawyers and their clients

Organic Law 5/2024 of 11 November on the Right of Defence was published in the BOE on 14 November 2024 and entered into force on 4 December of that year, twenty days after its publication. It is the first rule that specifically develops the right of defence recognised in Article 24 of the Constitution, which it defines as a fundamental right.

The law has two sides: the rights of people who need a defence and the guarantees and duties of the professionals who provide it. Both affect the day-to-day work of law firms.

Clients' rights

Chapter II brings together the rights of anyone who needs legal assistance:

• Legal assistance (Article 4): including free legal aid for those who prove insufficient resources.
• Choice, withdrawal and replacement (Article 5): the client can freely choose their lawyer, dispense with them and replace them, with access to the necessary information.
• Information (Article 6): the lawyer must inform clearly about the seriousness of the matter, the strategy, costs, fees, court costs and their own identity.
• Quality (Article 8): services must be of good quality and accessible, which the law links to the continuing and specialised training of professionals.
• Plain language (Article 9): court decisions and procedural communications must be understandable, with special adaptation for minors and people with disabilities.

Article 12 includes among the guarantees the transparency of the criteria of artificial intelligence tools on legal platforms, a point that connects with the new timetable of the European AI Act.

The engagement letter

Article 15 allows the client to demand a written engagement letter. It must set out their rights, the foreseeable steps, the possible consequences, the quote and the handling of their data.

For the firm, the engagement letter is also a protection: it puts the scope of the work and the fees in writing. If you practise on your own, it fits with orderly invoicing, which you will have to adapt to Verifactu in 2027.

The lawyer's guarantees

Section 1 of Chapter III sets out the guarantees of the legal profession:

• Independence and respectful treatment (Article 14): free and independent action, equal access to filings, and rights of work-life balance and of suspension of proceedings.
• Confidentiality and secrecy (Article 16): communications between lawyer and client are confidential. Communications between the parties' lawyers have no evidential value.
• Freedom of expression (Article 17): the lawyer may express themselves freely before the public authorities and the parties, within the limits of ethics and other rules.
• Lawyers with disabilities (Article 18): right to use accessible supports and resources.

Article 13 also stresses that the duty-solicitor scheme is an essential pillar of the system.

The lawyer's duties

Section 2 sets out the duties. Article 19 requires acting in line with the Constitution, with procedural good faith and loyalty, avoiding conflicts of interest and using the official electronic means. Article 20 refers to the General Statute of the Spanish Legal Profession and the Code of Ethics.

The requirement of procedural good faith is not abstract. The courts have already applied it to filings with invented citations, as we explain in our review of the cases of fake case law generated by AI.

The role of the bar associations

Chapter IV reinforces the role of professional bar associations:

• They guarantee compliance with ethics and must protect professionals when their independence is violated or they are not treated with respect (Article 21).
• They handle clients' complaints and claims and sanction conduct that puts the right of defence at risk (Article 22).
• The General Council of the Spanish Legal Profession can issue interpretative circulars of the Code of Ethics (Article 23).

According to the General Council of the Spanish Legal Profession, the law also clarifies the limits of professional secrecy, strengthens the reservation of activity against unauthorised practice and allows bar associations to set indicative fee criteria for the purposes of costs.

Other reforms included

The final provisions amend several laws. Among others:

• The Criminal Procedure Act, to limit detention for minor offences.
• The Organic Law on Habeas Corpus, to widen who can request it, including the defence lawyer.
• The Free Legal Aid Act, with rules for insolvency matters and for legal entities in criminal proceedings.

What to review at your firm

1. Update your engagement letter template with the contents of Article 15.
2. Review how you inform the client about costs, fees and court costs.
3. Go over your confidentiality protocols, including in the use of digital tools.
4. Learn your bar association's protection procedure.

The law adds to other recent reforms, such as ADR as a precondition for suing. We follow regulatory news in Industry news.