New labour rules
28 November 2005
21 May 2007
7 May 2002
5 November 2007
6 September 2012
11 June 2007
The legal profession in Spain is immersed in a series of three legislative projects, which either regulate pre-existing situations or introduce undoubtedly transcendental innovations. These include the new regulation of professional partnerships; the regulation of access to the legal profession; and the regulation of the special labour relationship for lawyers on the payroll of another, with a possible interconnection between these changes.
In Spain, as in many other countries, the legal profession can be practised individually or on behalf of an employer. When practised on one's own behalf, it can be done individually or in association with others. When practised on behalf of an employer, the General Statute of the Spanish Legal Profession (Estatuto General de la Abogacía Española, Royal Decree 658/2001, 22 June) refers to a civil-commercial collaboration agreement under a service provision formula, but also accepts the possibility to do so within the labour law system under an employment contract.
When referring to this possibility, the General Statute sets forth that "the legal profession can also be practised" - in other words, in no event is an imperative labour relationship established, but this is an optional faculty of the parties.
While the former statute retains its validity at present, we also have the act of 24 March, the Spanish Workers' Charter, Article 1 of which defines the labour relationship, imperatively, as "all voluntary work performed for valuable consideration and within the framework of an organisation directed by a natural or legal person, denominated employer or contractor". And this act will apply to all these forms of work.
We are therefore faced with two legal texts, which, in the case of lawyers, would establish a different regulation when the legal profession is carried out on behalf of another. The labour relationship would be optional under the General Statute of the Spanish Legal Profession, whereas it would be compulsory under the Workers' Code in certain circumstances. Even taking into account that, according to Spanish legislation, the Workers' Charter ranks above the General Statute in the legislative hierarchy, so the former prevails over the latter, this does not preclude the existence of a significant degree of uncertainty in legislation that regulates a lawyer's work on behalf of another.
When does a labour relationship exist?
Before progressing with this matter, and independently of what may occur in future regulatory developments, we must differentiate between in-house lawyers on the payroll of that company, who also work on behalf of another, yet whose employer or contractor is not another lawyer or law firm. This type of legal practice raises another type of problem other than strictly labour-related ones, which also are addressed differently in the various European countries.
The Workers' Charter sets forth the legal assumption that a labour relationship exists in certain circumstances. Where lawyers are concerned, the most characteristic aspects when defining the labour relationship would be:
- Whether or not the risk of economic activity is assumed.
- Whether or not the lawyer contributes towards company expenses - that is, whether they provide material and human resources to the firm.
- Whether or not they receive a fixed remuneration from the company.
- Whether the lawyer issues invoices in his own name, or it is done by the firm.
- Whether or not the lawyer is included in an organisational structure.
The answer to these questions will mandatorily define whether a labour relationship exists, with all rights and obligations inherent thereto, for both the employing and the employed lawyers.
Compatibility with the lawyer's independence
The lawyer, when performing his important mission of defending the rights, liberties and interests of his clients, will be subject to a series of deontological principles, such as independence, liberty, professional discretion, and so on, which confer uniqueness to the labour relationship.
Accordingly, the dependence entailed in any labour relationship must be made compatible with the lawyer's independence, his freedom to decide whether to advise a client or to handle a work-related matter in a firm that has its own clients or affairs, or merely to observe working hours when complying with court deadlines, among other singularities.
The Spanish Government, based on certain court judgments and a series of inquiries by the Ministry of Labour, could only acknowledge the doubt surrounding legal uncertainty in labour relationships between lawyers and their employers and, following its proposal, Parliament recently approved a rule relative to lawyers who provide their services in individual or collective law firms and created a special labour scheme, which will be developed within a period of 12 months.
It expressly establishes the rule whereby the labour relationship will be of a special nature, based on the liberty and independence to practise the legal profession acknowledged by the law and deontological principles.
This new legal situation will have a particular impact on the practice of law in Spain, as the greater part of work on behalf of another performed by some lawyers for other lawyers took the form of a collaboration agreement, either civil or commercial, which was protected by the General Statute of the Legal Profession.
It remains to be seen whether the regulation on this type of special labour relationship is appropriate and, accordingly, it is extremely advisable to know the opinion of the bar associations.
Joaquín García-Romanillos is a partner at Gómez-Acebo & Pombo Abogados