Lex Mundi Global Attorney-Client Privilege Guide |
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Belgium |
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(Europe)
Firm
Liedekerke
Contributors
Frank Judo |
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| Is the ACP recognized in your jurisdiction? | Not as such, see below. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Yes, art. 458 of the Belgian Criminal Code recognizes the obligation of a lawyer, a client and third parties to respect professional secrecy. Attorney-client communications are without any doubt protected by this rule. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No distinction is made. Case law accepts that an attorney breaks his obligation in order to protect a higher good (for instance in order to avoid a terrorist attack). In some very specific cases (for instance child abuse) this was confirmed by the legislator (458 bis Criminal Code). Some authors of legal doctrine hold the view that the client is not bound by the lawyers’ obligation to professional secrecy. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | The legal entity that instructed the attorney is considered to be the client. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | See below. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | In-house counsel are not bound by professional secrecy but only by a duty of confidentiality, specific to in–house counsels. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | In principle not, but a recent amendment to the professional rules of the bar seems to open that possibility, as far as there is a clear distinction between their activities as a member of the bar and their activities as an in-house counsel. |
| Is the common interest doctrine recognized in your jurisdiction? | No |
| How is the doctrine articulated in your jurisdiction? | N/A |
| Must a common interest agreement be in writing? | N/A |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | There is no interdiction of litigation funding. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not to our knowledge |
| Is the crime-fraud exception recognized in your jurisdiction? | Not as such, but see our response to "Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?" |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Supreme Court (Hof van Cassatie/Cour de Cassation), 22 May 2012 and 458 bis-quater Criminal Code. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | This information also falls within the boundaries of professional secrecy, as defined by 458 of the Criminal Code. |
| Does your jurisdiction recognize an accountant-client privilege? | Article 458 of the Criminal Code applies to everybody who has knowledge of his client secrets in a professional context, as far as there is a necessity to use the services of this professional. |
| Does your jurisdiction recognize a mediation privilege? | Article 458 of the Criminal Code applies to everybody who has knowledge of his client secrets in a professional context, as far as there is a necessity to use the services of this professional. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Article 458 of the Criminal Code applies to everybody who has knowledge of his client secrets in a professional context, as far as there is a necessity to use the services of this professional. |
Lex Mundi Global Attorney-Client Privilege Guide
Not as such, see below.
Yes, art. 458 of the Belgian Criminal Code recognizes the obligation of a lawyer, a client and third parties to respect professional secrecy. Attorney-client communications are without any doubt protected by this rule.
No distinction is made. Case law accepts that an attorney breaks his obligation in order to protect a higher good (for instance in order to avoid a terrorist attack). In some very specific cases (for instance child abuse) this was confirmed by the legislator (458 bis Criminal Code). Some authors of legal doctrine hold the view that the client is not bound by the lawyers’ obligation to professional secrecy.
The legal entity that instructed the attorney is considered to be the client.
See below.
In-house counsel are not bound by professional secrecy but only by a duty of confidentiality, specific to in–house counsels.
In principle not, but a recent amendment to the professional rules of the bar seems to open that possibility, as far as there is a clear distinction between their activities as a member of the bar and their activities as an in-house counsel.
No
N/A
N/A
There is no interdiction of litigation funding.
Not to our knowledge
Not as such, but see our response to "Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?"
Supreme Court (Hof van Cassatie/Cour de Cassation), 22 May 2012 and 458 bis-quater Criminal Code.
This information also falls within the boundaries of professional secrecy, as defined by 458 of the Criminal Code.
Article 458 of the Criminal Code applies to everybody who has knowledge of his client secrets in a professional context, as far as there is a necessity to use the services of this professional.
Article 458 of the Criminal Code applies to everybody who has knowledge of his client secrets in a professional context, as far as there is a necessity to use the services of this professional.
Article 458 of the Criminal Code applies to everybody who has knowledge of his client secrets in a professional context, as far as there is a necessity to use the services of this professional.