The in-house lawyer and legal privilege: three key insights

As lawyers, in-house lawyers have a duty of confidentiality. Because of this duty, they can invoke legal privilege, grounded in the principle that everyone must be able to turn to a trusted legal adviser freely and without fear of disclosure. The professional statute (‘Professioneel statuut voor de advocaat in dienstbetrekking’) guarantees that the in-house lawyer can comply with this duty of confidentiality, without employer interference.

Not everyone within an organisation automatically qualifies as ‘client’, thus someone with whom privileged information may legitimately be shared – some may qualify as (internal) third parties. Sharing privileged information with third parties, inside or outside the organisation, risks losing privilege in relation to that information. The in-house lawyer should thoroughly consider which information is shared with whom, and why. Critically, the in-house lawyer remains responsible for compliance with professional obligations, including confidentiality.

Privilege only applies to information entrusted to the lawyer in their capacity as a lawyer. Copying an in-house lawyer into a CC field with no purpose other than to render an e-mail confidential does not create privilege. Nor does having an in-house lawyer attend a meeting solely to make its contents privileged. For in-house lawyers who serve as secretary to the board or otherwise attend board meetings in a legal capacity, the lesson is clear: legal privilege depends not solely on title or presence, but on whether information was entrusted to the in-house lawyer in their capacity as a lawyer.