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  • 25-06-2015

There is no reason to limit the privilege available to lawyers and notaries, according to Bert Fibbe and Bart Keupink in the NRC Handelsblad. They were responding to aplea by Public Prosecutor Vincent Leenders for limiting that right which appeared inHet Financieele Dagblad (only available in Dutch) on Friday. Leenders made his plea on behalf of the National Public Prosecutor's Office for Financial, Economic and Environmental Offences.

Bert, who spoke as a board member of the Netherlands Bar Association, emphasised in the article "how essential it is that clients can rely on the obligation of lawyers, like other recipients of confidential information, to remain silent about the information entrusted to them".

Bart denies that new case law supports the Public Prosecution Service's position. "It is settled case law that the privilege is only lost in exceptional situations, for example if clearly abused by the lawyer. In such situations, the lawyer himself is often guilty of a criminal offence", according to Bart in de NRC. 

The cases cited by the Public Prosecution Service all involve such an exceptional situation and are therefore in line with the settled case law. "There is a sound procedure for determining whether the privilege has been lost: in short, the Public Prosecution Service can have the relevant documents confiscated and sealed until an examining judge, in consultation with the Bar Association, decides whether the privilege can be invoked. Anyone who disagrees with this decision can take the matter to court."

The NRC article (only available in Dutch) 'Alsof advocaten zich verschuilen. Echt niet' is only accessible to subscribers.

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