Derivative attorney-client privilege versus demand for information: must experts cooperate or not?
More and more often, attorneys engage the services of accountants or other experts when advising their clients. What must experts engaged by an attorney do if police officials or judicial authorities show up on their doorsteps demanding information they obtained from an attorney?
Attorneys have a duty to observe confidentiality in respect of all information they obtain from or about their clients while practicing their profession. To ensure that their duty to observe confidentiality is not an empty shell, attorneys are subject to an attorney-client privilege under which they cannot, as a rule (exceptions apply), be forced by police officials or judicial authorities to share information obtained from or about their clients with them. Most other professionals, such as accountants and tax advisers, are not subject to such a privilege.
In practice, attorneys often engage the services of experts (such as accountants) in order to advise their clients. In most cases, those experts will need information about the client and/or the matter to be able to advise the attorney properly. The question is whether police officials and judicial authorities are at liberty to request information that experts possess because they were hired by an attorney. The answer is no. In the past, the Dutch Supreme Court confirmed numerous times that if an attorney hires an expert, such as an accountant, in connection with a case, that expert is subject to a 'derivative' attorney-client privilege. That means that the scope of an attorney’s attorney-client privilege is expanded to include the expert or experts he engages.
But what exactly does that mean if police officials and/or judicial authorities turn up on an expert’s doorstep demanding information exchanged between the attorney and the expert? Can an expert – like an attorney – refuse to provide information on the grounds that he is subject to a derivative attorney-client privilege? The Supreme Court recently rendered yet another judgment on this topic ruling that experts hired cannot refuse to provide information requested by the police or judicial authorities. On the contrary: failure to comply with a demand made by the police or judicial authorities is a criminal offence. Thus, the expert hired must provide the information. However, that does not mean that the police and the judicial authorities may actually examine the information. According to the Supreme Court, that information must first be submitted to a supervisory judge (investigating judge) who must keep the information in his possession until the attorney in question has expressed his opinion on the question of whether those documents fall under the attorney-client privilege.
The Supreme Court’s recent view is in line with one of its previous judgments rendered in 2015, meaning that it is not new. However, in practice there seems to be a great deal of misconception about this matter. The Supreme Court’s 2017 judgment has once more clarified the matter.
Please contact us if you would like more information about the attorney-client privilege and/or the derivative attorney-client privilege.