Check Your Privilege: Can In-House Lawyers Claim Privilege in the Netherlands?

A recent judgment by the Court of Rotterdam¹ has clarified the Dutch position on legal professional privilege (LPP) for in-house lawyers, making a key distinction between those working inside and outside the Netherlands. The court held that companies with foreign in-house lawyers working in the Netherlands need to have professional charters in place to benefit from LPP and that foreign in-house lawyers working outside the Netherlands can only benefit from privilege in the Netherlands if LPP rules apply in their own jurisdiction.

Background

In 2016, the Dutch Public Prosecution Service launched an investigation into Shell for suspected bribery surrounding its exploration of the Etosha oil field in Nigeria. A number of documents sent and received by 15 Shell in-house lawyers in various countries including the Netherlands were seized in a corporate raid.

Shell and the 15 lawyers later filed a complaint that the documents had been unlawfully seized and that they should be returned. The Dutch Public Prosecutor requested the magistrate in charge of criminal cases in Rotterdam Court to decide whether the seizure of the documents should have been permitted.

In October 2019, the examining magistrate ruled that neither the foreign in-house lawyers who worked in the Netherlands nor those working abroad could benefit from LPP.²

Rotterdam District Court Judgment

Shell appealed the magistrate's decision. In January 2021, the Rotterdam District Court partially overturned the magistrate's 2019 judgment with respect to foreign in-house lawyers working outside the Netherlands. Shell and the Dutch Public Prosecutor have both appealed the District Court's judgment to the Dutch Supreme Court.

Foreign In-house Lawyers Working in the Netherlands

In the Netherlands, in-house lawyers must sign a "professional charter" with their employer to guarantee their independence from undue employer influence.³

In this case, no professional charter had been signed by Shell's foreign in-house lawyers. Shell's Dutch in-house lawyers had signed the charter but Shell did not require the same policy for its foreign in-house lawyers working in the country. Shell submitted that the charter was only written for members of the Netherlands Bar and not for foreign non-registered lawyers. The court disagreed and reiterated the magistrate's 2019 judgment that LPP could not apply under Article 218 of the Dutch Legal Profession Rules without the signed charter. The court emphasised that the charter is "not merely a paper formality" but is of "essential importance" in ensuring the independence of the legal profession on top of any internal policies that exist within an organisation. In addition, the magistrate had also considered that Shell had not done enough to show that it respected the independence of its in-house lawyers or in promoting compliance with professional ethics and the legal professional code of conduct.

Foreign In-house Lawyers Working Outside the Netherlands

The magistrate in 2019 held that the in-house lawyers working outside the Netherlands could not invoke a right of non-disclosure because the head of the legal department was also part of the executive committee, which meant that the "independence of the Legal Department and the persons working for it is therefore insufficiently guaranteed".

In the appeal, Shell and the in-house lawyers submitted that an overlap between the legal and business operations should not be seen as undermining the independence of legal advice, but as improving transparency of information across the company.

The District Court overturned the magistrate's decision and held that the in-house lawyers working outside the Netherlands would be protected from disclosing privileged information only if they were entitled to LPP in their own jurisdiction. The mere fact that the in-house lawyers were employed by a subsidiary of a company established in the Netherlands and performed activities ultimately in the interests of the head office in the Netherlands was insufficient to justify Dutch law on the charter being applicable. In light of this bifurcation, unlike the other foreign Shell in-house lawyers, the lawyer based in Switzerland could not invoke a right of non-disclosure because he was not entitled to this right under Swiss law.

Significance

The judgment is interesting in light of the approach generally taken on privilege in other parts of Europe. For example, the European Commission does not treat in-house advice as privileged in the context of a European Commission investigation.⁴ In England and Wales, the Court of Appeal in Three Rivers (No. 5)⁵ held that only individuals within a company charged with seeking and receiving legal advice can engage in communications with in-house or external lawyers and benefit from legal advice privilege. However, this position might change if the issue is ever considered by the Supreme Court—the Court of Appeal recently indicated in T­he Serious Fraud Office v Eurasian Natural Resources Corp Ltd⁶ that it would have been in favour of widening the scope of LPP beyond Three Rivers if it had been open to it to do so.

Companies with foreign in-house lawyers in the Netherlands should carefully review their policies to ensure they have professional charters in place with all their Netherlands-based lawyers (both Dutch and foreign). Having the signed charter in place will allow companies to explore legal queries transparently without fear of their communications being disclosed in the future.

Foreign in-house lawyers working outside the Netherlands can also take comfort in the knowledge that they can now rely on LPP rules in their own jurisdiction to benefit from privilege in the Netherlands. However, in-house lawyers coming from jurisdictions without a right of non-disclosure should remain cautious. It is worth noting that this part of the judgment has some similarities to the English Commercial Court's recent judgment in PJSC Tatneft v Bogolyubov & Ors. There, the court held that communications with foreign (in-house) lawyers are covered by legal advice privilege if they act in their capacity or function as a lawyer.⁷

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.