The Supreme Court issues rules on the right of confidentiality for internal lawyers

Background to the case

Documents and digital data carriers were seized on 17 and 18 February 2016 at Shell’s headquarters in The Hague as part of a criminal investigation into official bribery in connection with the purchase of an oil field in Nigeria. This also includes documents sent or received by foreign attorneys who are or have been employed as an internal advisor by Shell or a Shell subsidiary. None of the internal lawyers have Dutch citizenship and have never been registered as a lawyer in the Netherlands. Shell and the in-house lawyers have filed an objection to the Rotterdam City Court against the seizure of documents and data that fall under the in-house lawyers’ right to secrecy.

The court’s decision

The court has ruled that the in-house lawyers who work or have worked for Shell in the Netherlands are only entitled to silence if they and Shell have signed a professional statute as set out in Art. 5.12 Regulation on the legal profession, which states that Shell respects independent professional practice. In the case of in-house lawyers working or having worked for Shell abroad, the court has recognized the right to secrecy without imposing any additional conditions, except for a Swiss in-house lawyer, because a hired lawyer in Switzerland does not have the right to secrecy. The court has not (yet) ruled on more far-reaching requests from Shell and the in-house attorneys.

The cassation appeal

Shell and the Internal Lawyers and the Public Prosecutor’s Office (OM) have filed a cassation appeal against the court’s decision. According to Shell and the in-house lawyers, the court wrongly made the appeal to the court of secrecy conditional on the signing of the professional statute or on the rules of the country where the in-house advisers are or have worked. The prosecution is of the opinion that in-house lawyers who have worked for Shell abroad cannot invoke the right of confidentiality.

Opinion of the Advocate General

The Advocate General was of the opinion that the signing of a professional statute by employed foreign lawyers registered as lawyers in their home country cannot be made a condition of being considered a privileged person in a Dutch criminal investigation. The Opinion of the Advocate General therefore seeks to set aside the contested decision.

Judgment of the Supreme Court

The decision of the court is a preliminary ruling. There is no cassation appeal over this. The plaintiffs have therefore been dismissed in their cassation appeals.

However, the Supreme Court has seen reason to make general remarks about the confidentiality of internal lawyers and about the scope of this confidentiality. These comments lead to the conclusion that, contrary to the Advocate General’s advice, the right to secrecy of internal lawyers depends on compliance with the rules of the Dutch lawyer and / or foreign rules. The Supreme Court distinguishes lawyers by their country of origin and depending on whether they can be considered ‘internal lawyers’.

In its judgment, the Supreme Court provides an overview of the applicable rules, which were partly issued by the Dutch Bar Association (* 1). The Supreme Court states, first of all, that a lawyer cannot be deprived of the right to secrecy on the sole ground that he is employed. However, it must be proved that his independence is guaranteed.

According to current rules, lawyers registered in the Netherlands who trade exclusively for a company for which they are employed and who carry out activities that are mainly aimed at practicing law (ie: internal lawyers registered in the Netherlands), on a professional statute signed by them and their employer. This statute, which is provided for in Article 5.12 of the Law on the practice of law, provides guarantees for independent practice and undisturbed compliance with the professional and practice rules applicable to a lawyer. Internal advisers registered in the Netherlands can – in relation to work performed for his employer – only have the right to secrecy if they have such a status.

This also applies to the special category of “visiting lawyers” (lawyers from the EU, from states party to the Agreement on the European Economic Area and from Switzerland) who work as internal lawyers in the Netherlands. In relation to work that they have performed for their employer, they only meet the requirements if they have a professional status at the time of work or have entered into an agreement under the law of the home country with the employer that provides equivalent guarantees. offer of their independence.

Other foreign lawyers are only entitled to secrecy if (i) they are entitled to secrecy under the law of the country of origin and (ii) provided that their activities in the Netherlands were carried out by a Dutch lawyer, the right of secrecy may also be invoked. . In the case of internal advisers, they must be able to document that they have the above agreement.

The in-house lawyer can only invoke a right of secrecy if it concerns what has been entrusted to him because of his capacity as a lawyer and thus in connection with the business as a lawyer which is aimed at the practice of ordinary law practice. In assessing whether this is the case, it is particularly important whether the activities are related to an ongoing or expected procedure.

(* 1) The Dutch Bar Association includes the Board of Representatives. This board of directors is, among other things, authorized to adopt articles of association for reasons of good practice (section 28 (1) of the Danish Bar Act). These articles of association are binding on i.a. lawyers registered in the Dutch Bar Association and for “visiting lawyers” (Article 29 (1), preamble and under a and bi Advocatenwet).

Publication on Jurisdiction.nl

ECLI: NL: HR: 2022: 760

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