You may recall this prior post regarding Spain’s high court striking down a statute prohibiting contingent fees. A friend and Spanish law school instructor, Albert Azagra, was kind enough to to provide the following additional specifics on the ruling. I posed the questions and Albert provided the answers, with a caveat that he is not an expert on the issues and I edited a word here and there:
(1) Was the source of the restriction based on what American lawyers
would call legal ethics rules?
Yes. Section 16 of the Code of Professional Responsibility of the Spanish
Bar Association expressly banned contingency fees as the sole form of
compensation. It only allowed a fraction of the compensation to be linked
to the results and, in any event, the client had to pay at least the costs
of rendering the service. Note further that the rule prohibiting
contingency fees was also included in a national regulation governing
lawyers – albeit not an Act of Parliament- that had been upheld by the
Supreme Court some years ago. This makes the November decision even more
(2) Did the court strike down the rule based on some “constitutional”
grounds or based on EU or Spanish laws on restrictions on competition.
The Court struck down the rule mainly on the grounds of Spanish competition
(3) How wide an impact might we expect from this decision. (eg is this a precedent for all EU countries) and whether the outcome can be changed by, for example, an amendment to existing legislation?
Spanish statutes and case law are generally not very influential in other European countries. Actually, traditionally we copy the French and, to a lesser extent, the German, and the Italian. German and US law are becoming more and more influential.
Also, generally speaking, in the Civil Law tradition decisions by the courts of other Civil Law countries do not constitute precedent. Of course, EU courts and the European Court of Human Rights decisions are a different story.
Spanish Law Review and Blog
Albert also sent word this weekend about a website and blog that cover tort law issues in Spain, with the website including a section in English for some but not all of the papers. Here’s what he explained, and the links:
“My research group is now launching a blog. It publishes brief analytical comments on bills, judgments, legal education and other topics. The blog is called Abogares (http://www.abogares.com/) and it is the blog of InDret (http://www.indret.com), our SSRN-listed electronic law review with more than 3,000 subscribers from around 30 countries. The law review has published 77 of its 708 articles entirely in English, and we expect the blog to have posts in English, too.”
Albert is a great person and quite learned – you can find him on LinkedIn.