Criminal law
Published on October 16th, 2026
Yes. Anyone under investigation in Spain can replace the lawyer assigned to them with one they choose, at any point in the case and without giving a reason (Organic Act 5/2024, article 5.1). What people tend to get wrong is the timing. The change takes effect when the new lawyer receives the previous lawyer's consent, called the venia, and until then the duty lawyer is still your lawyer.
Status as of October 16th, 2026. This guide is for someone under investigation in Barcelona who was assigned a duty lawyer (an abogado de oficio, appointed by the Barcelona Bar Association, the ICAB) and wants a private one.
The law gives everyone the right to choose the lawyer who defends them and to dispense with that lawyer's services (Organic Act 5/2024, article 5.1). The Criminal Procedure Act repeats it for anyone under investigation (article 118.1.d), and the rules of the Catalan Bar add that a client can change lawyer at any time and that nothing can be made a condition of doing so (article 50 of the Normativa de l'Advocacia Catalana).
You do not have to justify the change or ask anyone's permission, and the duty lawyer has done nothing wrong by being replaced. Wanting someone who speaks your language, or simply someone you picked, is enough.
A lawyer may not take over another lawyer's case without that lawyer's consent, which in practice means a short exchange of letters.
1. You instruct the new lawyer and sign an engagement. 2. The new lawyer writes to the duty lawyer, in a way that leaves proof of receipt, attaches proof that you gave the instruction and asks for the venia. The new lawyer must also tell you that the duty lawyer is entitled to be paid for the work done (Catalan rules, article 51; ICAB duty-lawyer regulations, article 22.1; General Statute of the Spanish Bar, article 60.1). 3. The duty lawyer acknowledges receipt, confirms the venia in writing and hands over the whole file and whatever the new lawyer needs to know (Catalan rules, article 52; General Statute, article 60.2). 4. If the venia does not arrive within 48 hours, the new lawyer can ask the ICAB's governing board for it, and where urgency is shown the dean or a delegate decides (Catalan rules, article 53). 5. The change takes effect when the new lawyer receives the venia, and from then on the former lawyer is no longer answerable for what happens next (Catalan rules, article 54).
The duty lawyer also has to report the substitution to the ICAB's duty-lawyer service (ICAB regulations, article 22.3).
If you still qualify for free legal aid but have lost confidence in your lawyer, you can ask the Bar that made the appointment for another duty lawyer. That request needs a justified cause and does not stop the current lawyer from acting. The Bar hears the lawyer concerned for five working days and rules within fifteen. A refusal can be challenged (Act 1/1996, article 21 bis; Royal Decree 141/2021, article 14).
If what you want is a private lawyer, you are in effect waiving the appointment. The waiver covers the duty lawyer and any duty procurador, the court agent who files papers and receives notifications, it must be communicated expressly to the legal aid commission and to the Bars, and it does not cost you the other benefits already granted (Act 1/1996, article 28; Royal Decree 141/2021, article 37). A private lawyer and a duty procurador cannot act together unless the private lawyer waives fees in writing (Act 1/1996, article 27). Free legal aid pays for the lawyer it assigns and not for the one you choose, and a private lawyer's fee is therefore yours.
If legal aid was recognized, the Generalitat pays the duty lawyer through the duty roster (ICAB regulations, article 21.1). The same regulations also provide for the lawyer you replace to send you a fee note for the work done, with a recommendation to keep it moderate, and for them to give back to the Bar what they received for the appointment if you pay (articles 22.2 and 22.4). The ICAB's website, for its part, presents a change of lawyer as giving the duty lawyer a right to charge you. Since how those rules apply when legal aid has been recognized is not a settled question, I would ask at the outset whether a fee note will come and on what basis.
If legal aid was refused, never requested or waived, you owe the duty lawyer for what they actually did, including the assistance at the police station if you were arrested (Act 1/1996, articles 6.2 and 27; Royal Decree 141/2021, article 36.2). Either way the figure follows the work done, a disagreement can be put to the Bar for a report (Catalan rules, article 54.3), and the claim does not hold up the handover, since conditioning the venia on payment is itself a professional infraction (Catalan rules, article 67.1.e).
The court learns of the change from the new lawyer, who in the abbreviated procedure also holds the power to represent you. No procurador is needed until the opening of the trial, and the lawyer is the one who gives the address for notifications (Criminal Procedure Act, article 768). Asking for the venia is not enough. Until the new lawyer has appeared in the case and said so, the court keeps treating the duty lawyer as the defense and time limits keep running. The Audiencia Nacional applied exactly that in a European arrest warrant case, where the time already running against the previous lawyer made the new lawyer's appeal late (order of April 9th, 2026, ECLI:ES:AN:2026:1525A, second and third legal grounds).
When someone writes to me in this situation, I first ask what stage the case is at, whether a statement or hearing is scheduled and whether legal aid was ever recognized, since how urgent the change is depends on those answers.
You can message me on WhatsApp or read about my criminal defense work. If the case started with an arrest, the first 72 hours explains how the duty roster works.
Editorial responsibility: Carles Jiménez, Spanish lawyer (Barcelona Bar No. 34.946). This note was prepared with the assistance of artificial-intelligence tools and reviewed and approved by the author before publication.
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