Legal professional privilege (verschoningsrecht) continues to protect what a client tells a lawyer, even when that lawyer is suspected of a crime. The exception: documents that are themselves the object of the offence or were used to commit it are not protected, and in very exceptional circumstances the interest of finding the truth may prevail.
The recent criminal prosecution of a well-known defence lawyer in one of the largest Dutch organised crime cases has put this question in the spotlight. Below we explain the legal basis of privilege, where its limits lie, how searches of law firms work and what this means for you as a client.
What is legal professional privilege under Dutch law?
It is the right of certain professionals to refuse to give evidence about what was confided to them in their professional capacity. For criminal cases, it is laid down in Article 218 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv).
Article 218 Sv covers people who have a duty of confidentiality because of their position, profession or office, such as lawyers, civil-law notaries, doctors and members of the clergy. For lawyers, the duty of confidentiality also follows from Article 11a of the Dutch Lawyers Act (Advocatenwet), and confidentiality is one of the core values listed in Article 10a of that Act. You can read the text of Article 218 Sv on wetten.overheid.nl.
The underlying idea was set out by the Dutch Supreme Court (Hoge Raad) in its judgment of 1 March 1985 (NJ 1986/173) concerning a notary. Everyone must be able to seek legal advice freely, without fearing that what they say will be used against them. That social interest generally outweighs the interest of finding the truth in a particular case. The privilege is therefore not a personal perk of the lawyer. It exists for the client, and ultimately for society.
Which information does the privilege cover?
Only information that the lawyer received in the course of the professional relationship with the client. Information outside that role is not protected.
If a lawyer steps outside the role of legal adviser, for example by acting as a business partner or by taking part in a criminal enterprise, the information involved is not privileged. The same applies to documents that are the object of a crime or that served to commit it, such as a forged contract. In practice, drawing the line between protected legal advice and unprotected information is one of the harder questions in criminal procedure.
Does the privilege still apply if the lawyer is a suspect?
In principle, yes. The privilege belongs to the client, so it does not disappear simply because the lawyer is suspected of an offence.
Case law of the Supreme Court accepts only two ways in which the privilege can give way. The first is that the information falls outside the protected relationship, as described above. The second is that there are very exceptional circumstances in which the interest of finding the truth must prevail over confidentiality. The courts apply that second exception with great restraint.
When a lawyer becomes a suspect, a paradox arises. The same person who must guard the privilege is now the subject of the investigation. That is why the law places the decision on what is and is not privileged with an independent judge, not with the investigators and not with the lawyer alone.
How does a search of a law firm work?
A search at the office of a lawyer is carried out under the direction of the investigating judge (rechter-commissaris). In practice, the local dean of the Bar Association (deken) attends to protect the privilege.
Under Article 98 Sv, letters and other documents covered by privilege may not be seized without the consent of the privileged person, unless an exception applies. The dean advises the investigating judge on whether particular documents or files are covered. Where the lawyer or the dean disputes that a document may be seized, it is sealed and not inspected by the investigators until the judge has decided. That decision can be challenged before the court.
This procedure is meant to prevent fishing expeditions: a broad search in the hope of finding something. The investigating judge must keep the search focused on what the investigation actually requires.
How is privileged digital data filtered out?
Seized digital data must be filtered so that privileged communication is removed before investigators see it. The person entitled to privilege must be given the opportunity to invoke it.
The Supreme Court ruled on 22 December 2015 (ECLI:NL:HR:2015:3714) that someone with a derived privilege, such as an employee of a law firm, must hand over requested material. The authorities must then give the actual privilege holder the chance to assert the privilege over those items. The case concerned USB sticks and boxes of documents, but the principle applies equally to digital files.
The large datasets from encrypted communication networks such as EncroChat and Sky ECC have made this harder. They contain millions of messages, some of which may be between lawyers and clients. Filtering on that scale puts pressure on the traditional safeguards, and there is a real risk that privileged communication reaches investigators. Defence lawyers regularly raise this in court.
Why do lawyers come under pressure from organised crime?
Defence lawyers in serious organised crime cases can face pressure, threats or attempts to involve them in communication between clients and others. The professional rules require them to keep their independence and distance.
Independence and confidentiality are core values of the profession under Article 10a of the Advocatenwet. A lawyer who passes on messages for a detained client, for example, risks stepping outside the role of legal adviser, and with it outside the protection of privilege. At the same time, the state has a duty to protect lawyers so that they can do their work without fear.
A lawyer who is threatened or pressured has no general duty to report a client to the police, and doing so may breach confidentiality. The usual course is to consult the dean of the local Bar in confidence.
Why does privilege matter for trust in the justice system?
Because people will only speak openly to their lawyer if they are sure it stays confidential. Without that certainty, the right to a proper defence loses its meaning.
If clients fear that the state may read their communication with their lawyer, they will hold back information. The lawyer then cannot give proper advice, and the court may end up deciding on an incomplete picture. Each breach of privilege, even in a single case, can therefore affect trust far beyond that case.
How do European courts protect privilege?
The European Court of Human Rights protects confidential communication between lawyer and client under Article 8 of the European Convention on Human Rights (ECHR), and links it closely to the right to a fair trial under Article 6.
In Niemietz v. Germany (1992), the Court held that a search of a law office falls under the protection of Article 8. In Kopp v. Switzerland (1998), it found a violation where the law did not clearly regulate the tapping of a law firm’s telephone lines. In Michaud v. France (2012), it examined the duty of lawyers to report suspicious transactions under anti-money laundering rules, and accepted that duty because it does not apply to the defence of clients.
The Court of Justice of the European Union made a similar distinction in Ordre des barreaux francophones et germanophone (C-305/05, 2007). Reporting duties under anti-money laundering law may not apply to information that lawyers receive when defending or representing a client in legal proceedings.
What happens if privilege is breached during an investigation?
The court can attach consequences under Article 359a Sv. Depending on the seriousness of the breach, that can be a sentence reduction, exclusion of evidence or, in very exceptional cases, the prosecution being declared inadmissible.
Exclusion of evidence is the most common consequence where privileged information was used unlawfully. Inadmissibility of the prosecution is reserved for cases where the breach has made a fair trial impossible. The court weighs the interest served by the rule that was breached, the seriousness of the breach and the harm it caused to the defendant.
What does this mean for you as a client?
What you discuss with your lawyer in that capacity is protected, also during a criminal investigation. Keep that communication within the professional relationship and do not use your lawyer as a messenger.
If your lawyer’s office is searched, or if you suspect that investigators have seen privileged messages, raise this with your lawyer straight away. The defence can ask the court to exclude the material or attach other consequences. Timing matters: objections are strongest when raised early in the proceedings.
In summary
- Legal professional privilege is laid down in Article 218 Sv and exists for the client, not for the lawyer.
- It continues to apply when the lawyer is a suspect, except for documents that are the object or instrument of a crime and in very exceptional circumstances.
- A search of a law firm takes place under the direction of the investigating judge; disputed documents are sealed until a judge decides (Article 98 Sv).
- Seized digital data must be filtered, and the privilege holder must be able to invoke the privilege.
- A breach can lead to exclusion of evidence or other consequences under Article 359a Sv.
Frequently asked questions
What is legal professional privilege and who has it?
It is the right of certain professionals to refuse to give evidence about information confided to them in their professional capacity. Under Article 218 of the Dutch Code of Criminal Procedure it applies to people with a duty of confidentiality because of their profession, such as lawyers, civil-law notaries, doctors and members of the clergy.
Does the privilege still apply if the lawyer is suspected of a criminal offence?
In principle, yes. The privilege protects the client, not the lawyer. It does not cover documents that are the object of the crime or were used to commit it, and it may give way in very exceptional circumstances.
Can the Public Prosecution Service seize communication between a lawyer and a client?
Not as a rule. Privileged documents may not be seized without consent under Article 98 of the Code of Criminal Procedure. If the prosecution believes material falls outside the professional relationship, the investigating judge decides, usually with the dean of the Bar present.
What is the role of the dean during a search of a law firm?
The dean attends as an independent guardian of the privilege and advises the investigating judge on whether documents or files are covered. Disputed items are sealed and are not inspected by the investigators until a judge has decided.
What are the consequences if privilege is breached during an investigation?
The court can attach consequences under Article 359a of the Code of Criminal Procedure. That may be a sentence reduction or exclusion of evidence. Only in very exceptional cases, where a fair trial has become impossible, is the prosecution declared inadmissible.
How does Dutch privilege relate to the European Convention on Human Rights?
The European Court of Human Rights protects confidential lawyer-client communication under Article 8 of the Convention and links it to the right to a fair trial under Article 6. A suspect must be able to consult a lawyer in confidence.
Does a lawyer have to report a client who puts them under pressure?
There is no general duty to report a client to the police, and doing so may breach confidentiality. A lawyer who is threatened or pressured to facilitate a crime should consult the dean of the local Bar in confidence.
Law & More defends suspects in criminal investigations and advises on searches and seizures. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
How Law & More can help you with this is explained on our criminal lawyer page.
