Definition
Article 458 of the Criminal Code lays down the duty on lawyers to preserve professional confidentiality and is implicitly protected by instruments of international law, such as Article 6 and 8 of the European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) and the International Covenant on Civil and Political Rights (ICPR) (“ICCPR”). According to Belgian law, lawyers are allowed to keep secret any correspondence exchanged between them (acting as lawyers in their capacity) and their client, as well as advice and any other information provided to them by the client for the client’s file management. The professional confidentiality of a lawyer therefore protects not only the legal proceedings themselves (before, during, after) but also the legal advice provided to the client (Decision of 23 January 2008 of the Belgian Constitutional Court, n° 10/2008).
According to the Belgian Court of Cassation, in order to secure a civil judgment or a criminal verdict, testimony arising from a violation of professional confidentiality cannot be included.
Belgian jurisprudence, in accordance with Articles 6 and 8 of the European Convention on Human Rights, has exercised the professional secrecy duty set out above to determine that records covered by professional secrecy are protected irrespective of where they are kept. When in the lawyer’s possession, but even when the documents are in the client’s possession, the documents are secured. Therefore, in Belgium, legal professional privilege remains.
It should be noted that Belgian professional confidentiality rules (Articles 9 and 21 of the International Private Law Code and Regulation (EC) No 593/2008 of 17 June 2008 (Rome I)) also refer to foreign skilled lawyers working in Belgium.
Legal professional privilege in the context of civil litigation In the context of civil or commercial litigation, as is usually found in common law jurisdictions, there is no formal disclosure procedure.
However, the parties are obliged to comply in good faith with respect to the processing of records. The judge may order the creation, on the basis of Article 877 of the Belgian Judicial Code, of a document which is important and contains key information for the resolution of the dispute. However, if there is a valid reason (Article 882 of the Belgian Judicial Code), the creation of documents may be denied, and that legitimate reason may include documents protected by legal professional privilege.
Legal professional privilege in the sense of judicial inquiries
In the form of criminal inquiries and administrative and other proceedings, legal professional privilege also applies. Notwithstanding the application of Article 460ter of the Belgian Criminal Code, a lawyer is authorized to reveal details related to a criminal investigation – if authorised by his client and if it is in his best interests.
When a lawyer is subject to a criminal investigation, professional confidentiality laws cease to apply (i.e. if a lawyer is suspected of an offence or of assisting in an offence). The confidentiality duty is superseded by a right to remain silent.
Legal professional privilege scope
The legal professional right extends to lawyers (Avocat / Advocaat) who are members in Belgium of the Flemish Bar (OVB) or of the French and German Bar (OBFG). There is no time limit on legal professional privilege and it is also valid at every pre-trial stage.
Any information received by or obtained from a counsel (acting in his capacity as a lawyer) in connection with the provision of legal advice, legal proceedings or any dispute in general, or in matters relating to the rights and obligations of the client, shall be covered by professional legal privilege. Emails, correspondence, notes, advice, or preparatory documents can include this.
Are legal professional privilege-protected interactions with in-house counsel?
For in-house lawyers, Belgian law acknowledges legal professional privilege. According to Article 5 of the Act of 1 March 2000 establishing the Belgian Institute for In-house Counsel (Institut des Juristes d’Entreprise / Instituut voor Bedrijfsjuristen), the advice offered by the in-house counsel is confidential, for the benefit of the employer of the counsel and in the sense of the legal counsel’s work.
This was confirmed in the judgment of 5 March 2013 by the Court of Appeal of Brussels. The Court of Appeal held that it was not possible for the Belgian Competition Authority, in compliance with Article 5 of the Act of 1 March 2010, read in combination with Article 8 of the ECHR (right to privacy), to seize documents containing legal advice supplied by in-house counsel. The Court of Appeal held that internal requests for legal advice, correspondence relating to legal advice, draft opinions and preparatory documents were not protected by legal professional privilege.
When the right is waived?
It has also been debated whether legal professional privilege can be waived: although some critics consider that the central concept of legal professional privilege can never be waived because it is a public policy duty, others consider that legal professional privilege belongs to the client and can therefore be waived.
Past decisions also held that, in some cases, legal professional privilege may be overridden in favor of the right of protection of the client. It is widely agreed that, if a higher value (overriding public interest purposes or state of need (Article 71 of the Belgian Criminal Code)) is at stake, a lawyer can or is entitled to set aside legal professional privilege, which can only be safeguarded by the disclosure of privileged knowledge.