Misuse of a lawyer's/notary's services: grounds for lifting his/her professional privilege?
Under very exceptional circumstances, the professional privilege of a lawyer (attorney-client privilege) or of a civil law notary (notary-client privilege) can be lifted in a criminal case.
Does this mean that this privilege can be lifted in situations where there is a possibility that a lawyer or civil law notary has been used to further the commission of a criminal offence? This question was the subject of a recent judgment by the Gelderland District Court.
Professional privilege serves to protect individuals who are under a duty of confidentiality in the exercise of their profession, such as lawyers, civil law notaries and doctors, from having to disclose information they have obtained from or about their clients/patients, and hence safeguards the confidentiality of that information. The parties against whom the professional privilege of lawyers and civil law notaries can be invoked include the police and judicial authorities: these do not have the right to access or use privileged information; nor are they permitted to force the lawyer or civil law notary to disclose such information.
Some exceptions apply. In criminal cases, attorney-client privilege or notary-client privilege can be lifted in very exceptional circumstances where the interests of arriving at the truth outweigh the interests of maintaining confidentiality. Whether or not such circumstances are deemed to exist must be assessed on a case-by-case basis. The Supreme Court has ruled multiple times that the sole fact that a lawyer or civil law notary is himself/herself suspected of having committed a criminal offence is in any event insufficient. However, very exceptional circumstances can be deemed to exist if the offence in question is a serious one, e.g. participation in a criminal organisation together with clients of his/hers.
In the case recently decided by the Gelderland District Court, a lawyer did not want the police or judicial authorities to see documents that, in his opinion, were covered by his attorney-client privilege. The lawyer's client was suspected of running an illegal online gambling operation and large-scale laundering of the proceeds and had, together with his fellow suspects, set up various businesses and invested criminal proceeds in real estate, engaging a number of advisers – including lawyers – in this regard. One of these lawyers was also a suspect in the criminal proceedings, but not the lawyer invoking the attorney-client privilege.
The court ruled that very exceptional circumstances existed in this case by reason of (among other things) the fact that the suspects had engaged a variety of professionals, including lawyers and civil law notaries, in connection with the setting up of various money-laundering structures, leading to – as the court put it – "a highly undesirable blurring of the line between the legitimate world and the underworld". Clearly, the court did not only find it likely that the professionals engaged – including the lawyer invoking the privilege – were being misused by their clients to launder money; this was apparently the decisive argument justifying the lifting of the privilege.
This point of view is a new one and could have major consequences, in that it could lead to an increasing number of cases where the police and judicial authorities demand access to privileged information claiming that the relevant lawyer or civil law notary "was misused by his/her client". Of course it is undesirable that legal professionals be exploited by criminals, but where does the border lie? Where should the line be drawn? One thing is certain: this is not the last word on the subject and it will be necessary to keep an eye on future developments. In the meantime, please do not hesitate to contact us if you have any questions about professional privilege and/or duties of confidentiality.