Are foreign lawyers acting as in-house counsel covered by legal privilege in the Netherlands? In a recent ruling, the Supreme Court held that they can invoke legal privilege, but only if their independence is guaranteed.
The Supreme Court's ruling
In its 24 May 2022 ruling, the Supreme Court distinguishes between three categories of in-house counsel: (a) those registered with the Netherlands Bar; (b) those registered with a bar in an EU or EEA member state or Switzerland and working in the Netherlands under the professional title of their country of registration; and (c) other in-house counsel.
As to the in-house counsel in categories a and b, the Supreme Court ruled that they are covered by legal privilege provided that they and their employer have signed an agreement to guarantee and provide evidence of independence. This "professional charter" ensures that these in-house counsel, working in the Netherlands, can invoke legal privilege. The Netherlands Bar has drawn up a template (officially in Dutch only but, in practice, English versions are in use). In-house counsel in category b can also claim legal privilege if they can show that during the activities for which they seek privilege, they have an agreement with the employer which is governed by the law of the country of their registration and offers equivalent guarantees for the independent exercise of their practice.
The above criteria also apply to category c: other foreign lawyers working as in-house counsel in the Netherlands. But to be covered by privilege, they must pass two additional tests: (i) they must be entitled under the law of their country of origin to invoke legal privilege for the activities they are conducting in the Netherlands, and (ii) legal privilege would also exist if a lawyer registered in the Netherlands conducted these activities in the Netherlands.
In reaching its decision, the Supreme Court deviated from the Advocate General's opinion. According to the Advocate General, the right to be covered by legal privilege exists once the capacity of the lawyer has been established. It should not be made conditional on a signed charter (or equivalent agreement) or on foreign law requirements – this is based on a general principle of law in the Netherlands that anyone should be able to turn to a lawyer without fear of disclosure.
Capacity as lawyer
In its ruling, the Supreme Court commented in passing that in-house counsel are covered by legal privilege only for what has been entrusted to them in their capacity as lawyers. This will have to be assessed on a case-by-case basis – an especially relevant factor is whether the relevant activities relate to pending or expected court proceedings.
What this means for in-house counsel
The recent ruling underlines the importance of having an agreement that guarantees independence, regardless of the jurisdiction in which the in-house counsel is registered and employed. A signed charter seems to be a straightforward way to guarantee, and provide evidence of, independence.
So what about the Supreme Court's comment that in-house counsel are covered by legal privilege only for what has been entrusted to them in their capacity as lawyers? We recommend that in-house counsel indicate if they are communicating in their capacity as a lawyer and, if they are, specify the litigation or case in question.
Our master class on legal privilege
We would like to invite you to a master class on legal privilege where we will address the main principles of legal privilege and the strategies to safeguard this privilege – paying particular attention to in-house counsel's position, and how this is impacted by the Supreme Court's ruling. The master class will be held twice: online through MS Teams on Thursday, 29 September 2022 from 8:30 to 10:00 and on-site on Friday, 30 September 2022 from 8:30 to 10:30. If you are interested in attending, please email firstname.lastname@example.org and indicate your date of preference.