Definition
A general principle in law based on confidentiality and the right of non-disclosure is the Dutch definition of legal professional privilege.
Regardless of the field of law, legal professional privilege exists, since legal professional privilege is related to the quality of a lawyer admitted to the Dutch Bar (advocaat). Articles 10a and 11a of the Legal Counsel Act set out the legal professional privilege or professional responsibility to protect client confidences and secrets (Advocatenwet).
The responsibility to maintain secrecy is not absolute. For example, under the legislation enforcing the EU Anti-Money Laundering Directive (Wet ter voorkoming van witwassen en financieren van terrorism), (legal) professionals are required to disclose suspicious transactions offering specialized services, such as advice on mergers and acquisitions of enterprises. The professional may need to set aside the responsibility to protect the confidentiality of the information of their customer to this degree. The requirement to report is regulated by strictly defined exceptions.
Legal professional privilege in the sense of civil litigation
In the sense of civil proceedings, it is not appropriate for lawyers admitted to the Dutch Bar (advocaten) to reveal knowledge which is subject to professional legal privilege. When called to testify as a witness or to provide documentation, attorneys need to be satisfied that the material is permitted to be released. Under Article 165(2) of the Code of Civil Procedure, lawyers should not be required to answer questions or reveal details protected by legal professional privilege (Wetboek van burgerlijke rechtsvordering). The scope of legal professional privilege includes all correspondence between the attorney and the client in relation to a legal matter, including all details given to the attorney for the purpose of receiving legal assistance.
Legal professional privilege in the sense of judicial inquiries
If a lawyer is called as a witness in a criminal investigation, the lawyer can, during the entire case, claim their right of non-disclosure (Article 218 of the Criminal Procedure Code (Wetboek van strafvordering)). He is, however, unable to refuse to appear. Under Articles 96a and 98 of the Code of Criminal Procedure, records covered by legal professional privilege (such as documents and data) cannot be confiscated without the prior consent of a lawyer. However, it is possible to seize records which are not covered by legal professional privilege.
A warrant for seizure also extends to legal professional privilege, which means this search has to uphold legal professional privilege.
Any search and seizure on the premises of a lawyer must be pre-authorized by an investigating judge and must be carried out in the least burdensome way. In fact, a search for seizure at the premises of a lawyer will be attended by the dean of the appropriate district’s Bar association to validate this.
The Court of Appeal of The Hague (ECLI:NL:GHDHA:2015:2881) ruled in 2015 that a lawyer’s phone could not, in theory, be tapped. If a lawyer directly is deemed a victim of a crime, an exception exists. It is appropriate to destroy official records based on privileged telephone calls and cannot be used in a criminal case (Article 126aa(2) of the Code of Criminal Procedure).
Legal professional privilege may be set aside under extremely rare situations, for example in cases of apprehension of an organized crime organization composed of lawyers and clients. In fact, it’s very unusual to set aside legal professional privilege.
Lawyers are excluded from the requirement to disclose such offenses. It is normally believed that a lawyer will not report a crime he is aware of in his capacity as a lawyer.
Legal professional privilege within the sense of administrative law
Apart from its status as a general principle of law, Article 5:20 of the Dutch Administrative Code grants administrative legal professional privilege in respect of regulatory powers. According to this report, practitioners (lawyers, physicians, notaries and clergymen) are not obliged to comply with law enforcement agencies, such as the Dutch Competition Authority (ACM), the Dutch Financial Markets Authority (AFM), the Fiscal Investigation Division (FIOD) or the Dutch Central Bank (DNB), if they are in violation of their duties. These practitioners can, and will usually, deny cooperation and do not reveal any records, information or documents.
Legal professional privilege in the investigation of the Netherlands competition authority
Article 12g of the Law Creating the Netherlands Consumer and Market Authority (Instellingswet ACM) states that all materials (mainly documents and data carriers) on the premises of an undertaking which, if owned by a lawyer, would fall under legal privilege fall within the scope of a non-dd Judicial professional privilege for lawyers is founded on Article 5:20 of the Administrative Code of the Netherlands (Algemene wet bestuursrecht).
In fact, for nearly all lawyer/client communications, legal professional privilege applies. It contains this correspondence:
– Documents prepared by the client to obtain legal advice from a lawyer for the sole purpose of
– Any advice offered by the lawyer, and any advice given by the lawyer,
– Internal reports from the client and summaries of recommendations from the counsel.
Legal privilege often applies to communications between a lawyer and advisors who are not lawyers who are asked to give details or non-legal advice to the lawyer about the matter in which the lawyer gives legal advice. For instance, if a lawyer hires an economist to advise on a matter and bases the legal advice on the advice of the economist, legal professional privilege often protects the advice of the economist. According to the Midden-Nederland District Court’s decision, however, reports created by third parties at the request of a lawyer for reasons other than the provision of legal advice concerning the subject-matter of those reports are not protected by legal professional privilege. Furthermore, documents which have not been produced for the purpose of obtaining legal advice shall not be subject to legal professional privilege solely on the ground that a copy of such documents has been submitted to the lawyer in connection with the request for legal advice.
If a conflict occurs between an undertaking (or its lawyer) and the ACM during an examination as to whether or not a legal professional privilege is protected by a document, the ACM shall act in compliance with its Legal Privilege Policy. In summary, the policy provides that the ACM inspectors in charge of the investigation may take the disputed documents to the ACM office, without revising them, in a sealed envelope, where the confidentiality argument is determined by a specifically appointed ACM official who is not involved in the investigation. The undertaking (and lawyer) in question are asked to make their views known to the official of the privilege.
Legal professional privilege in the sense of merger regulation
In the Netherlands, the extent of legal professional privilege in the case of merger regulation remains undetermined. This may be partially due to the fact that, unlike cartel investigations or misuse of power, the purpose of merger regulation in itself is not to detect violations of the law. As a general rule, the ACM’s routine examination of the notified merger does not give rise to the ACM exercising its investigative powers under the Dutch Administrative Code, according to which the failure to comply constitutes an infringement of its own right. In these cases, the need to claim legal professional privilege as an exception to the obligation to comply appears not to occur in relation to the routine examination of the notified merger.
If the ACM were to carry out a formal investigation into a breach of the provisions relating to merger regulation, such as failure to notify a merger or failure to comply with the standstill requirement relating to a notified merger, the ACM would use its investigative powers under the Dutch Administrative Code and, in that case, the same rules on legal privilege as mentioned above would apply.
Legal professional privilege scope
What does legal professional immunity protect?
There are no clear conditions with respect to the time at which records are produced in order to fall within the boundaries of legal professional privilege. In particular, documents prepared expressly for the purpose of obtaining legal advice or to be used for the purpose of offering legal advice fall within the scope of professional legal privilege.
In theory, legal professional privilege, including letters, emails, phone calls and digital data, protects any type of information.
Documents or objects which form an integral part of an offence or have been used for the commission of an offence and objects which, in their professional capacity, are not in the hands of the lawyer are beyond the scope of legal professional privilege.
The attorney will determine whether the knowledge falls within the boundaries of legal professional privilege. If the argument for legitimate professional privilege may not be fairly correct, this assessment needs to be respected.
Definition
Two primary forms of legal professional privilege are recognized under New Zealand law. The two styles are generally referred to as ‘lawyer/client right’ and ‘privilege of litigation’. In both civil and criminal cases, both kinds of privilege are recognised.
There are also other kinds of privilege accepted. The right also would not prohibit a party from revealing a settlement offer offered on a ‘without prejudice except as to costs’ basis if the bid was refused by the party to which the offer was made, but subsequently requests a court order in its favor for legal costs.
There is is privilege in relation to certain particular forms of confidential contact, including communication with religious ministers and with medical practitioners and professional psychologists in criminal proceedings. There is, however, no longer any right in New Zealand to interact between husbands and wives, civil union partners or de facto partners.
Legal professional privilege in the sense of civil litigation
Any person who has privilege over information or communication shall have the right to refuse, in any proceeding, to reveal such information or communication or any opinion developed on the basis thereof. The individual who holds the privilege can also prevent it from being revealed by any other person who also has the information or contact (provided that person did not receive the information or communication in a way that amounted to waiver of the privilege). Furthermore, in a proceeding, a judge may order that proof of a correspondence, knowledge, opinion or record in which a person is privileged may not be presented. A judge may request such an order from the person who has the right, or some other interested party.
The discovery duties of a party in civil matters require the description of certain papers in which privilege is asserted.
These records, however, do not have to be produced by other parties for review. A regime for opposing a claim of privilege is established by the High Court Laws.
Legal professional privilege in the sense of judicial inquiries
Both the prosecution party and the defendant are expected to reveal such details in criminal cases, but not that which is privileged. However, under the Criminal Disclosure Act 2008, if it is appropriate for the defendant to offer an effective defense, a judge can disallow a claim of legal professional privilege by the prosecuting party.
As with civil proceedings (see below), a judge may order that proof of a correspondence, information, opinion or record in which a person has a right may not be presented in a proceeding in a criminal proceeding. A judge may request such an order from the person who has the right, or some other interested party.
Legal professional privilege in the sense of antitrust / competition authority inquiries
In the case of antitrust and competition law cases, the laws that apply in civil matters apply. In addition, in areas that are not ‘procedures’, both lawyer/client privilege and litigation privilege are still recognized by common law. This involves inquiries by, for instance, the Commerce Commission of New Zealand. Where the Commerce Commission is obligated to produce records, it is not appropriate to include certain documents that are shielded by lawyer/client privilege (and litigation privilege, if any).
Legal professional privilege scope
A wide range of interactions, including oral communications and records, are protected by all forms of privilege (except privilege in relation to lawyers’ trust accounts, which applies only in relation to documents). Privilege does not, however, apply to communications made or obtained for a deceptive reason or to help an individual commit an offence.
Lawyer/client privilege covers a client’s correspondence with their legal advisor if the contact is meant to be confidential and is made for the purpose of receiving or obtaining legal advice. This involves documents prepared with a view to being used, but not necessarily used, as a correspondence for the purpose of receiving legal advice or as an aide-memoire for more efficient communication. In 2016, an amendment to the Proof Act clarified that this right extends to an individual seeking legal assistance, whether or not those services are actually accessed by the person. The right is often attached to documents such as drafts and working papers, and fee notes issued by legal advisers have been found to be annexed. Where the agent of either party makes or receives such a message, it will also be protected by this right. The defendant holds the lawyer / client right.
Privilege for litigation is narrower than privilege for lawyers/clients. It safeguards information and communications produced, obtained, compiled or prepared for the dominant purpose of preparing for court proceedings during the duration in which such proceedings are either ongoing or fairly apprehended (the ‘mere chance’ of litigation being inadequate to attract legal professional privilege). The right of litigation covers correspondence between the party and any other individual and the legal adviser of the party and any other individual. It also protects information gathered or prepared by a legal advisor of the party or of the party or by any other person, at the request of the party or at the request of the legal adviser, for the dominant reason of planning proceedings before the court. For example, for the dominant reason of preparing for a proceeding, correspondence between the lawyer of a party and the expert of the party are privileged, as is information gathered and prepared by the expert at the request of the party or its lawyer for the proceeding. Litigation right is owned by the client, as in lawyer / client privilege.
Are legal professional privilege-protected interactions with in-house counsel?
In relation to correspondence with and / or information received, collected or prepared by in-house lawyers, both lawyer / client privilege and litigation privilege will apply if they possess a current practice license and act in their capacity as legal advisor (as opposed to simply an executive of the company). Litigation privilege can also extend in relation to correspondence with or information prepared or gathered by the in-house counsel for the dominant reason of preparing a proceeding, even if the in-house counsel does not serve as legal advisor in their capacity (provided that the contact is between the party and the party’s legal advice or that the information is prepared at the request of the party)
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Lawyer/client privilege and litigation privilege are both extended to overseas practitioners if they are either a citizen in Australia who is a barrister or lawyer or a person entitled under the laws of another country to do work usually done by a lawyer or patent attorney in New Zealand. This may involve someone in an overseas country with a current practical credential, or equivalent.
When the right is waived?
By express or implied waiver, right is reasonably quickly lost. Privilege may be waived in situations that are inconsistent with a claim of confidentiality by creating or revealing some substantial part of the privileged content. Accordingly, privilege can be waived in relation to information revealed without the explicit requirement that it remain confidential.
Privilege may also be waived by placing in a proceeding the privileged content ‘in question’. This normally happens when in a proceeding a party tries to rely on privileged information (e.g. as justification for an action taken by that party) or when a witness presents evidence that brings the privileged material into the proceeding. In this case, the waiver will require more transparency than the bare truth that the individual acted ‘on legal advice.’