Maintaining Legal Privilege in the Netherlands

• Author: Nikki Odom
• Position: The author is a senior employment counsel with Akzo Nobel, Inc., Chicago.
• Pages: 16-17

Published in Litigation, Volume 43, Number 1, Fall 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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NIKKI ODOM

The author is a senior employment counsel with Akzo Nobel, Inc., Chicago.

MAINTAINING LEGAL

PRIVILEGE IN THE

NETHERLANDS

Identify ing if and when attorney-cl ient

privilege applies is an imprecise exer-

cise requiring a fac t-based inquir y into

the commun ications in question . Courts

consider whether t he communication is

between an attor ney and his or her client,

whether the com munication constitut es

legal advice, and whet her the communi-

cation can b e considered confidentia l.

The inquiry becomes increasingly

complicated when corporate employees

fail to understand, and in-house attor-

neys fail to clar ify, that their trusted le-

gal advisor on business m atters does not

represent the employee s’ personal inter-

ests but those of the orga nization. The

myth that copyi ng in-house counsel on

an email or invit ing in-house counsel to

a business meeting is enough to keep a

communicat ion privileged conti nues to

prevail in or ganizations. Conti nued con-

fusion around the priv ilege and how it is

invoked in various jurisd ictions requires

in-house attorneys to be vig ilant and to

help businesspeople to deline ate between

communications th at are likely covered

by the privilege and t hose that are not.

Although the applicability of the

privilege is circumstantial, at lea st in

the United States, there is no question

that privileged com munications can ex-

ist between in-house attor neys and their

clients. This is not the case i n other coun-

tries. In the Europea n Union (EU) for in-

stance, the attor ney-client privileg e, re-

ferred to as “legal professional pr ivilege”

(legal privilege), has tradit ionally been

solely reserved for out side counsel. This

position stems from a 1982 case in which

the European Court of Just ice articulated

a two-pronge d test for legal pri vilege: (1)

the communications must have a con nec-

tion to the client’s right of defense, and

(2) the exchange must be between a cli-

ent and an “i ndependent” lawyer. Case

C-15 5/79, A M&S Europe Ltd. v. Comm’n

of the European Communities, 1982 E.C.R .

1575. According to the European Cour t of

Justice, in-house attorneys do not meet

the second prong because they are un-

able to exercise adequate professional

independence from their clients. In the

court’s view, the ties of employment do

not allow in-house attorneys to ig nore

commercial strategies pu rsued by their

employers. Thus, commu nications with

in-house counsel were deemed privileged

only when prepared for the exclusive pur-

pose of seeking exte rnal legal advice.

In 2010, to the chagrin of the Eu ropean

legal and business commun ities, the

European Court of Justice upheld its de-

cision that at torney-client privi lege did

not apply to advice or communications in

-

volving in-house counsel in EU competi-

tion investigations. Cas e C-550/07 P, Akzo

Nobel Chems. Ltd v. Comm’n, 2010 E.C.R.

I-8360. With regard to the i ndependence

requirement, the court held t hat due to

the inherent conf lict between profession-

al obligations and t he client’s goals, an in-

house lawyer’s ability to use professiona l

independence may be impaired. Since the

2010 ruling, attorney-client priv ilege has

been the subject of much debate in some

EU countries, and some EU member

states, like the Netherland s, have clari-

fied that the 2010 ruli ng is limited to EU

competition law c ases.

In-House Privilege

Despite the fact that intern al company

communications with in-house attor-

neys remain excluded from attorney-

client privilege in t he EU competition

law context, in March 2013 the D utch

Supreme Court recognized t hat legal

privilege for in-house counsel genera lly

does exist. HR 15 maa rt 2013, NJB 2013,

670 (Delta) (Neth.). In variance with the

European Court of Justice’s decision, the

court determined that lawyers can be

independent even if they are employed

by corporate legal depart ments.

Under Dutch law, legal privilege is

granted to certain professionals, in-

cluding attorneys, who have a duty of

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