Lex Mundi Global Attorney-Client Privilege Guide |
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Netherlands |
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(Europe)
Firm
Houthoff
Contributors
Frank Mattheijer |
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| Is the ACP recognized in your jurisdiction? | Yes, the ACP is recognized in the Netherlands. |
| 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... | N/A |
| 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? | In the Netherlands, no distinction is made in applying the ACP or professional confidentiality rules in civil and criminal proceedings. For an attorney to be able to invoke the ACP the knowledge must be entrusted to the attorney in his/her capacity as an attorney. It is the attorney that invokes the ACP not the client. In principle, government authorities are not allowed to require disclosure of attorney-client communications and legal work products of attorneys. However, there are exceptions to this rule. |
| 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.) | In the corporate context, no formal test has been introduced by means of a statute or case law to determine who within a corporation is considered the client for the purposes of the ACP. Although this remains unclear in absence of formal authority, any communication between an attorney and an employee of a corporation in the context of advice for the benefit of the corporation is arguably covered by the ACP. |
| 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? | For an in-house counsel to be able to assert the ACP equally to outside counsel, the in-house counsel has to be admitted to the bar. Additionally, the in-house counsel and his/her employer should agree to a professional statute safeguarding the independence of the in-house counsel. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes, in-house counsel is allowed to assert the ACP if they are admitted to the bar and have agreed to the abovementioned professional statute. An exception, however, the Court of Justice of the European Union ruled that in-house counsel cannot assert the ACP in competition-cases under European Union law. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, in-house counsel are allowed to be active members of the bar. |
| 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? | Yes, litigation funding is permitted in the Netherlands. For third-party funding some restrictions apply. These are put down in, for example, the Claim Code 2019, which is soft law, and Article 3:305a of the Dutch Civil Code. Further restrictions follow from jurisprudence. For attorneys, the general professional rules apply. For example, in principle a no cure no pay construction is forbidden for attorneys (subject to specific exceptions). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | It is only possible for the litigation funders to be protected by the ACP when the litigation funder is a client of the attorney (through engagement). |
| Is the crime-fraud exception recognized in your jurisdiction? | There are two exceptions to the ACP that are relevant in this respect. The first situation is where 'very exceptional circumstances' dictate that the ACP must make way for the truth-finding. This situation has been assumed in a number of cases where the attorney was himself/herself suspected of a serious criminal offense such as money laundering or forgery of documents. The second situation is where the object of the ACP is a 'corpora delicti' or 'instrumenta delicti'. These include physical and digital documents that are the subject of a criminal offense or that have served as an instrument to commit a criminal offense. Authorities are allowed to confiscate and take note of such documents even if they would normally be covered by the ACP. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The 'exceptional circumstances' exception is based on the jurisprudence of the Dutch Supreme Court. See for example the decision of the Supreme Court of 30 November 1999, NJ 2002/438. The 'corpora et instrumenta delicti' is based on Article 98 sub 5 of the Dutch Code of Criminal Procedure. |
| 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)?) | There is no specific statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. The information is protected by the ACP if the knowledge has been entrusted to the attorney in his/her capacity as an attorney. Information obtained or prepared in anticipation of litigation that was obtained by or prepared for an attorney will therefore often be covered by the ACP and be protected from disclosure in legal proceedings. |
| What are the elements of the protection in your jurisdiction? | See previous question. |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | No |
| Does your jurisdiction recognize a settlement negotiation privilege? | No, in the Netherlands a specific settlement negotiation privilege is not accepted. However, there is jurisprudence about the ACP and contract negotiations between an attorney, his client and a third party. In general, if it is clear that an agreement has not been reached, the content of the negotiation meeting is protected by the ACP. Based on professional rules of conduct, attorneys are generally barred from disclosing information regarding settlement negotiations to the court if negotiations fail and the case ends up in civil court. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, the ACP is recognized in the Netherlands.
N/A
In the Netherlands, no distinction is made in applying the ACP or professional confidentiality rules in civil and criminal proceedings. For an attorney to be able to invoke the ACP the knowledge must be entrusted to the attorney in his/her capacity as an attorney. It is the attorney that invokes the ACP not the client.
In principle, government authorities are not allowed to require disclosure of attorney-client communications and legal work products of attorneys. However, there are exceptions to this rule.
In the corporate context, no formal test has been introduced by means of a statute or case law to determine who within a corporation is considered the client for the purposes of the ACP. Although this remains unclear in absence of formal authority, any communication between an attorney and an employee of a corporation in the context of advice for the benefit of the corporation is arguably covered by the ACP.
For an in-house counsel to be able to assert the ACP equally to outside counsel, the in-house counsel has to be admitted to the bar. Additionally, the in-house counsel and his/her employer should agree to a professional statute safeguarding the independence of the in-house counsel.
Yes, in-house counsel is allowed to assert the ACP if they are admitted to the bar and have agreed to the abovementioned professional statute. An exception, however, the Court of Justice of the European Union ruled that in-house counsel cannot assert the ACP in competition-cases under European Union law.
Yes, in-house counsel are allowed to be active members of the bar.
No
N/A
N/A
Yes, litigation funding is permitted in the Netherlands. For third-party funding some restrictions apply. These are put down in, for example, the Claim Code 2019, which is soft law, and Article 3:305a of the Dutch Civil Code. Further restrictions follow from jurisprudence.
For attorneys, the general professional rules apply. For example, in principle a no cure no pay construction is forbidden for attorneys (subject to specific exceptions).
It is only possible for the litigation funders to be protected by the ACP when the litigation funder is a client of the attorney (through engagement).
There are two exceptions to the ACP that are relevant in this respect.
The first situation is where 'very exceptional circumstances' dictate that the ACP must make way for the truth-finding. This situation has been assumed in a number of cases where the attorney was himself/herself suspected of a serious criminal offense such as money laundering or forgery of documents.
The second situation is where the object of the ACP is a 'corpora delicti' or 'instrumenta delicti'. These include physical and digital documents that are the subject of a criminal offense or that have served as an instrument to commit a criminal offense. Authorities are allowed to confiscate and take note of such documents even if they would normally be covered by the ACP.
The 'exceptional circumstances' exception is based on the jurisprudence of the Dutch Supreme Court. See for example the decision of the Supreme Court of 30 November 1999, NJ 2002/438.
The 'corpora et instrumenta delicti' is based on Article 98 sub 5 of the Dutch Code of Criminal Procedure.
There is no specific statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. The information is protected by the ACP if the knowledge has been entrusted to the attorney in his/her capacity as an attorney. Information obtained or prepared in anticipation of litigation that was obtained by or prepared for an attorney will therefore often be covered by the ACP and be protected from disclosure in legal proceedings.
See previous question.
No
No
No, in the Netherlands a specific settlement negotiation privilege is not accepted. However, there is jurisprudence about the ACP and contract negotiations between an attorney, his client and a third party. In general, if it is clear that an agreement has not been reached, the content of the negotiation meeting is protected by the ACP.
Based on professional rules of conduct, attorneys are generally barred from disclosing information regarding settlement negotiations to the court if negotiations fail and the case ends up in civil court.