I assume the reader is aware of everything that has happened in recent days regarding the leaks of certain emails between a lawyer and the Prosecutor’s Office of the Provincial Court of Madrid, more specifically with its economic crimes section. It can be summarized in that third parties leak emails to a certain press in an interested and distorted manner in a way that misleads citizens by making their reading appear to be something far removed from reality. In other words, a disinformation campaign is being orchestrated that questions the probity of the Madrid Prosecutor’s Office, its economic crimes section and the person of the chief prosecutor. Certainly successful disinformation to the extent that there are many citizens who believe that the actions of the Prosecutor’s Office might be due to a kind of Judeo-Masonic plot once morest a certain person.
A first question arises: can the Prosecutor’s Office, faced with distorted information, offer an objective and truthful account of what happened? Not only can it, it must, under the protection of article 4 of the Organic Statute of the Public Prosecutor’s Office, which provides for the power to “inform public opinion of the events that occur, always within the scope of its jurisdiction and with respect for the secrecy of the summary.” and, in general, to the duties of confidentiality and secrecy inherent to the position and the rights of those affected.” Certainly we live in a society plagued by slander and misinformation in which it seems that a kind of obligation has also been imposed on public powers to silently endure lies, but the democratic health of a country requires that public servants, each which within their powers, do not validate post-truth with a silence that would make us complicit in information intoxication. By the way, this obligation to at least not be a necessary cooperator of disinformation affects all of us who are part of the public and the Bar Associations are public law corporations that are governed by Law 2/1974, of February 13, by the regional laws, the General Statute of the Legal Profession and its own statutes.
Then clarifications from the Madrid Prosecutor’s Office were necessary, clarifications that occurred (the chronology is essential) when the leaks from third parties were already published in the press. Then the Prosecutor’s Office did not reveal anything that at that point was not already in the public domain, it simply put context to what everyone knew. That is, no secret was revealed.
The astonishment cannot be more than capitalized at the institutional declaration of the Illustrious Bar Association of Madrid by its no less illustrious dean, Eugenio Ribón Seisdedos, accusing the Prosecutor’s Office, in the first place, of breaking professional secrecy, causing defenselessness to a person subjected to criminal proceedings.
The legal nonsense is of magnitude that, when one does not find a legal logic, one tends to think of other extra-legal logics. Explained as simply as possible: it is said that what is not in the case is not in the world, that is, that judges can only evaluate the documents that are incorporated into the case. It is evident that the emails in question have not been contributed to the case, so it is difficult for what is not incorporated into the case to generate any defenselessness. Even if this were not the case, it is worth reminding legal experts that, for example, the ruling of the Social Chamber of the Superior Court of Justice of Madrid of May 26, 2023 (Rec. 1238/2022) has declared the validity of the contribution as evidence in a judicial procedure of a series of emails exchanged between the parties’ lawyers without the authorization of the non-contributing lawyer. The Constitutional Court (in ruling 114/1984, of November 29) has already said that the provision of correspondence between lawyers does not imply a violation of the secrecy of communications enshrined as a fundamental right by article 18.3 of the Constitution. If what you intend is to generate to this a cause of nullity, is unviable. The shots can’t go that way.
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Secondly, the announcement of the exercise of criminal actions – thus, in general, without clarifying once morest whom and for what crime – already sounds like bravado.
What might it be then? Willingness to perpetuate sine the media intoxication? whitewash it? As article 3 of the Code of Ethics of Spanish Lawyers says, freedom of expression does not legitimize insults or gratuitous disqualification.
But the worst of all, as in any conflict, are the collateral damage that always punishes the most vulnerable. It is said: “The College […] disassociates with [sic] the conformity protocol and therefore strongly urges the members to avoid the use of the current conformity protocol, given its inadequacy.”
Without going into assessing that the now famous telematic communication from the lawyer did not occur within the framework of the conformity protocol, we must point out that the damage that this measure causes to the individuals is enormous. This protocol has been a successful experience that has allowed agreements to be reached between prosecutors and lawyers, always for the benefit of the defendant (normally a written agreement with recognition of facts and reduction of sentence to satisfy the interests of the victims). And the humble clients of public defenders and the powerful clients of prestigious lawyers and law firms have benefited from this.
I can tell you who this measure is going to harm. Well, it is not necessary, you will have already guessed it wisely.
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