Opinion: using emails between lawyers as evidence in court is an unsustainable grey zone

The framework is well known. Article 23 of the General Statute of the Spanish Legal Profession and article 5.3 of the Deontological Code protect communications between lawyers with professional secrecy and prohibit their disclosure without explicit consent. The ICAM expressly reminded its members of this after emails between counsel were admitted in several proceedings, and its deontological bulletin summarises the position of the Provincial Courts: infringing these duties produces disciplinary consequences, but does not by itself invalidate the procedural use of the communication as long as fundamental rights are not violated.

The practical trap of the double track

That double track generates a perverse incentive that any litigator recognises in private. If the opposing counsel's email contains a tactical concession, a risk assessment or a settlement proposal, filing it can decide the case; the expected cost is, at most, a disciplinary file of uncertain outcome, temporally distant. The rule barely deters because the benefit is collected in the proceedings and the cost is paid, if at all, in another forum and years later.

The collateral effects are worse than the individual case. If communications between counsel can end up in a case file, negotiation degrades: firms start writing defensively, emptying emails of content and moving what matters to untraceable calls. Negotiation between lawyers (one of the valves that most relieves the courts) loses precisely the frankness that makes it useful.

The reform arrived, the culture did not

The scenario described by the ICAM bulletin had a legislative hope: the then Bill of the Organic Law on the Right of Defence, which contemplated full confidentiality of communications between lawyer and client and between the parties' defenders, with sanctions for unauthorised use. That law is now a reality (we reviewed its main keys when it entered into force) and reinforces the statute of confidentiality in the proceedings.

However, forensic practice changes more slowly than the official gazette. While courts keep admitting the evidence and disciplinary files remain slow, the norm will live in that grey zone where everyone knows something is wrong but almost nobody assumes the cost of preventing it.

What each firm can do

Pending firmer case-law consolidation, there are practical measures within any lawyer's reach: expressly marking communications as confidential and protected by article 5.3 of the Deontological Code; opposing in writing and immediately the admission of the illicit evidence, invoking both the deontological norm and the fundamental right to the secrecy of communications where applicable; and bringing the facts to the attention of the corresponding bar's deontological commission, because deterrence only works if the infringement has a consequence.

Confidentiality between counsel is not a corporate privilege: it is the infrastructure that makes it possible to negotiate without fear and, with that, to unblock cases. A profession that prides itself on clear rules cannot keep tolerating that one of its fundamental norms is applied only in the disciplinary file and ignored in the courtroom. In our opinion and processes sections we will keep following this debate.

The ICAM's reminder, in short, points in the right direction but cannot do alone what only courts and colleges can do together: apply the rule where it is breached and sanction it where it is decided. Until both tracks converge, every lawyer who negotiates in writing will do so knowing that the paper can be used against them, and will write accordingly. Everyone loses in that equilibrium: the parties, who receive worse advice; the courts, who inherit the disputes that a frank negotiation would have resolved; and the profession itself, which sees one of its oldest guarantees eroded by daily practice.

This piece expresses the newsroom's opinion and does not constitute legal advice.