Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 1 of 35
`Case 1:19-cv-11586—FDS Document 214-4 Filed 07/30/21 Page 1 of 35
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`EXHIBIT 4
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`EXHIBIT 4
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`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 2 of 35
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`ECLI:NL:RBROT:2021:527
`
`Court
`
`District Court of Rotterdam
`
`Date ofjudgement
`
`ZBIGHEDZI
`
`Date of publication
`lCase number
`
`Field of law
`
`Special characteristics
`Indication of the
`contents
`
`zarolrtozs
`INSPIRE—15 [decision on notice of complaint}
`Criminal law
`
`Decision
`
`Decision on lawyerwclient priyiiege of in—house lawyers.
`
`Application of Dutch law implies that a professional statute must
`haye been signed by the in-house lawyer and their employer in
`addition to the inshouse lawyer being a member of the
`Netherlands Bar. The District Eourt considers the manner in
`
`which this safeguards the inahouse lawyer‘s independence to be
`material to the in~house lawyer's professional practice. Only if
`this requirement has been met, are they entitled to the position
`of person entrusted with priyiieged information and,
`consequently, the lawyer—client priyilege.
`
`The same requirement applies to a lawyer who is a member of a
`bar abroad and performs work for the company in the
`Netherlands. There is no reason to treat them differently from
`their Dutch colleagues.
`
`Foreign inrhouse lawyers who do not perform work In the
`Netherlands are not subject to that obligation. The mere fact
`
`that they are in the employment of a company based in the
`Netherlands is insufficient. They retain their lawyer-client
`priyilege if and to the extent that they haye this priyiiege in their
`own country.
`
`Sources
`
`Rechtspraaknl
`
`Judgement
`
`District Court of Rotterdam
`
`Criminal law team 2
`
`Public prosecutor's office no.: lflf‘EIBTETE-lfi |[ [name of the oil company] ]
`In camera numbers:
`
`193933 I: {name of complainant 1] J
`19.32330 i [name of complainant 2]}
`19f2881i [name ofcomplainant 3}}
`
`

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`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 3 of 35
`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 3 of 35
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`19f2382 [ [name of complainant 4]]
`19,1'2333 [ [name of complainant 5]]
`193'2834 { [name of complainant 6]]
`1911835 [ [name of complainant 3]}
`tenses [ [name of complainant 8]]
`133288? [ [name of compiainant 9]]
`19;“28331.’ [name of complainant 10]]
`19113391: [name of complainant 11]]
`19323541 [ [name of complainant 12] ]
`19f2391 [ [name of complainant 13] }
`lEiJ’ZEQEIE [name of complainant 14]]
`19;?893 [ [name of complainant 151]
`192139“ [name of complainant 16]]
`
`Decision ofthe District Court of Rotterdam multi-jndge divisionJ on the notice of complaint
`from:
`
`[name of complainant 1} {hereinaften [name of oii company} [J
`
`based in [piace of business] J
`for these proceedings choosing domicile in Amsterdam at Beethovenpiein ID [PO Box 1WD
`AP Amsterdam] at the offices of its counsel DJR. Doorenbos LLM;
`
`and
`
`the notices of complaint of the [former] “in-house coonseis" of [name of oil company]
`(hereinafter: in-hoose counselsL namely:
`
`[name of complainant 2] born on [date of birth of complainant 2] ;
`
`[name at complainant 3] J born on [date of birth of complainant 3];
`[name of complainant 4] J born on [date of birth of complainant 4];
`[name of complainant 5] J born on [date of birth of complainant 5];
`[name of complainant E] J born on [date of birth of complainant 5];
`[name of complainant 1'] J born on [date of birth of complainant 1'];
`[name of complainant 3] J born on [date of birth of compiainant 3];
`[name of complainant B] J born on [date of birth ofcomplainant 9};
`[name of complainant 13] J born on [date of birth of complainant 13];
`[name of compiainant 10] J born on [date of birth of complainant 1U];
`[name of complainant 11} J born on [date of birth of complainant 11];
`[name of complainant 12] J born on [date of birth of complainant 12];
`[name of complainant 14] J born on [date of birth of complainant 14];
`[name of complainant 15] J born on [date of birth of complainant 15];
`[name of complainant 16] J born on [date of birth of complainant 16] ;
`all ofwhom for this case choose domicile at Jachthavenweg 121; 11331 KM [PO Box T5263
`
`

`

`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 4 of 35
`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 4 of 35
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`1WD AG} Amsterdam, at the offices of their lawvers, E. van Liere Llel, F. Ahlers tlel and Ft.
`
`ten Ham LLl'v'l,
`
`hereinafter also jointlv referred to as: the complainants.
`
`The course of the proceedings until the contested decision
`
`On 1'? and 18 February.r 2016, [name of oil companvj's business premises in The Hague were
`
`searched in the context of a criminal investigation against [name of oil companv], which
`
`relates to the suspicion of bribery.r of a government official pursuant to Section 131jlj of the
`
`Dutch Criminal Code lhereinafter: the Etosha investigation}.
`
`The public prosecutor seized various items during this search, including documents and
`
`digital data carriers containing documentsx‘information about the {name of oilfield] oilfield
`
`in Nigeria that were sent or received bv [name of oil companvj‘s {former}I in—house counsels
`
`(hereinafter: the documents}. The intended seizure of these documents was based on
`
`Section 94 ofthe Dutch Code of Criminal Procedure {DCCP}.
`
`Cin 16 Februarv 2D18,[name of oil companv] submitted a first notice ofcomplaint against
`this under Section 552a DCCP, requesting that the described seizure, or the continuation of
`
`it, be declared unlawful in full or in part and that the return ofthe seized items be ordered.
`
`{name of oil companv] also requested that the handling of the request be suspended,
`
`because it was conducting consultations with the public prosecutor and the existence or
`non-existence of a {derivative} lawver-client privilege still had to be discussed before the
`examining judge. 1it"ti'hen handling the present notices of complaint on 15 October 2621'.) and 3
`
`December EDED, it was agreed that the handling of this notice of complaint would continue
`
`to be suspended and that this Court would not decide on it at present, to which the public
`
`prosecutor and [name of oil companvrs counsel consented.
`
`[in 14 Januarv Zdlfl, the public prosecutor demanded that the examiningjudge responsible
`
`for the handling of criminal cases in this Court decide whether the seizure of the documents
`
`was permitted. On 4 Februarv 2D19,{name ofoil companv}, also on behalf ofthe in-ltouse
`
`counsels, responded to the demand.
`
`Ev a decision dated 5 February.r 2019, the examining judge, on the basis of the ruling ofthe
`
`Dutch Supreme Court of 13 Cictober 2015 lECLI:NL:HFt;2D15:3[i?E}, held that thev have
`
`jurisdiction if an attachee argues outside the context of a notice of complaint that the items
`
`taken include items subject to a |awver~client privilege. Now that the examining judge,
`
`pursuant to the provisions of Section 98, can give an opinion on specific items onlv and the
`
`public prosecutor did not specificailv indicate the items concerned, the examiningjudge
`
`barred the public prosecutor.
`
`

`

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`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 5 of 35
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`[in 4 March EDIE-l, the public prosecutor sent the seized documents to the examiningjudge
`through the in—house counsel. in this context, the public prosecutor {initially} only requested
`that iudgement be given on the question whether these in-house counsels, who are
`registered with a foreign bar and are, or were, in the employment of [name of oil company]
`or a legal entity affiliated with [name of oil company] [hereinafter also: the [name of oil
`company] organisation], are entitled to privilege in respect of information discussed with
`
`{name of oil company].
`
`Following a pre—trial meeting with regard to these demands, [name of oil company] and the
`public prosecutor responded to each other's arguments and the examiningjudge gave the
`in-house counsels the opportunity to present their position.
`
`The decision of the examining judge of 1 October 2019 land its supplement of 4 November
`2019]
`
`On r October acts, the examining judge decided in response to these demands that none
`ofthe fifteen mentioned in~house counsels of [name ofoil company] are regarded as a
`person entrusted with privileged information within the meaning of Section 218 DCCP and
`that they cannot [independently] invoke the lawyer—client privilege.
`
`The examining Judge qualified [name of oil company]'s innhouse counsels, who are
`registered as lawyers in the country of origin and work in the Netherlands, as visiting lawyers
`within the meaning of Section 16f of the Dutch Counsel Act {Advocatenwet}.
`Because [name ofoll company] nor these in-house counsels have signed the Professional
`Statute as referred to in Section 5.12 of the Legal Profession Regulations [Verordeninp op de
`odvocotuur {and before 1 January lfllS: Article SEE} of the Professional Practice in
`
`Employment Regulation [Verordeninp op de proktfllruitoefening in dienstbetrekkinpll, the
`examining iudge held that the independence of these in-house counsels was insufficiently
`safeguarded. Moreover, [name of oil company] did not argue convincingly that this was
`safeguarded in any other way and the examining judge observed that the fact that the head
`ofthe Legal Department is a member of [ name of oil companyi‘s Executive Committee is
`
`even indicative of the opposite. Therefore, the in-house counsels cannot qualify as persons
`entrusted with privileged information within the meaning of Section 213 DCCP accordingto
`the examiningjudge.
`
`This also applies, in the opinion of the examiningiudge, to the lawyers in the employment of
`the [name of oil company] organisation who practise and work outside the Netherlands.
`
`They can, in principle, invoke confidentiality if they qualify as persons entrusted with
`privileged information under the law ofthe country in which they have their practice. Also in
`their case, however, the position ofthe head of the Legal Department, under whose
`
`supervision they perform their duties for [name of oil company] abroad, implies that their
`independence was insufficiently safeguarded. Consequently, they cannot qualify as persons
`entrusted with privileged information either, according to the examiningjudge.
`
`

`

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`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 6 of 35
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`The examiningjudge deferred the decision on the seized documents to be able to conduct
`
`the proceedings on the question whether the documents are subject to the lawver-client
`privilege given the fact that external lawyers are [also] involved.
`
`On 24 October 2019. the examining judge sent their decision to the inrhouse counsels and,
`subsequently, on 4 November 2019, thev informed [name of oil companv] and the invhouse
`counsels that their decision of 2 October 2019 qualifies as a decision under Section '33 DEEP,
`against which a notice of complaint can be lodged within two weeks.
`
`The course of the proceedings following the decision of the examining judge
`
`[name ofoil companv] lodged a notice ofcomplaint against the examiningjudge's decision
`pursuant to Section 552a in conjunction with Section 98 DEC? on 21 October 2019 and the
`
`in—house counsels lodged notices of complaint on 6 November 2019.
`
`The notices of compiaint were handled slrnultaneoush»r in chambers {in closed sessions} on
`15 October 2020 and 3 December 212126. The public prosecutors T.R. van Roomen LLivl and
`RJ. Boswijk LLM, and the counsels DR. Doorenbos Llel and PM. l'liovvotn‘jlr LLl‘v'l, on behalf of
`[name of oil companv] , and E. van Liere LLM, F. Ahlers Ltl‘v’i and R. ten Harnen LLl'v‘l, on
`behalf ofthe iii-house counsels. were examined. The complainants. aithough properlv
`summoned, did not appear.
`
`lil'.‘ourt's jurisdiction
`
`The Court has jurisdiction to hear the notices of complaint lodged bv [name of oil companv]
`and the in-house counsels against the decision ofthe Outch examining judge. Dutch law
`
`applies. The documents of the in—house counsels were seized from [name of oil companv]
`and [name of oil company] is a companvr based in the Netherlands [The Hague].
`
`Admissibiiltv
`
`Like the examining judge, the Court is ofthe opinion that, on the basis of the considerations
`in the ruling ofthe Dutch Supreme Court of 13 October 2015 {ECLIzNL:HR;2015:SO?Ej, it has
`jurisdiction if an attachee argues outside the context of a notice of compiaint that the items
`taken include items subject to a lawver—client privilege.
`
`In their decisionr the examining judge limited themselves [as requested bv the public
`
`prosecutor] to the decision on the {independent} entitlement to the lawyer-client privilege
`
`

`

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`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 7 of 35
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`of [name of oil companyl's in-house counsels.
`
`Apart from the question whether this constitutes a final decision against which a notice of
`complaint can be lodged pursuant to the provisions of Section 98(3) DCCF and, if so, whether
`[name of oil company] {who as attachee invokes the lawyer-client privilege of its in-house
`counsels] may do so or only those entitled to the lawyer—client privilege, it is an undeniable
`fact that the possibility or impossibility of upholding the decision of the examining judge on
`the lawyer—client privilege of the in—house counsels is of material importance to the manner
`in which the Etosha investigation and the further proceedings before the examining judge
`will be conducted.
`
`Therefore, the Court has determined, in consultation with and with the consent ofthe
`counsels and public prosecutors, that, particularly for reasons ofjudicial efficiency, the
`notices of complaint of both [name of oil company] and the in~house counsels {being
`possibly entitled to the lawyer-client privilege} are admissible, but that the Court, in view of
`the limited scope of the decision of the examining judge, will only give a judgement on the
`decision with respect to the independent lawyer‘client privilege of the in-house counsels.
`This means that no decision will be made on the further requests made in the notices of
`complaint, such as the request to return the documents.
`
`Position of the complainants
`
`The notices of complaint relate to the validity of the complaints submitted by [name of oil
`company] and the in-house counsels.
`
`The complainants taite the position that the decision of the examining judge is incorrect and,
`furthermore, that the decision lacks a factual basis. They have put forward - briefly
`summarised - the following.
`
`The question of the applicability of the lawyerrclient privilege in relation to the fifteen
`foreign in-house lawyers must, in the opinion ofthe complainants, primarily be answered
`according to Dutch law. On the ground ofthe “most protective privilege rule”, the law of the
`foreign jurisdiction ofthe counsel involved can be applied if it offers more protection.
`
`The complainants argue that all in-house counsels are lawyers and are, therefore, entitled to
`the lawyer—client privilege. This capacity is sufficient in the context of Section 218 DCCP.
`lifter all, case-law holds that the lawyer is part of the classic quartet. Their entitlement to
`the lawyer‘client privilege follows from the nature of their public function and the
`confidentiality that comes with their capacity. A lawyer‘s professional independence can co—
`exist perfectly with their position of employee. Their independence must become apparent
`in practice. It is not realistic to demand from lawyers that they convincingly argue their
`independence on each occasion. As a matter effect, the inrhouse counsels in the present
`
`

`

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`case are sufficientlv independent.
`
`The government land, therefore, thejudiciarv} should not interfere with lawvers'
`professional practices, particularly,r because lawvers must be able to operate independently.
`This is the reason that supervision of the legal trade has been entrusted in the law to the
`Netherlands Bar {Nederlondse Drd'e von Advocaten}.
`
`The core values of confidentiality and secrecvr are not linked to the core value of
`independence. An alleged lack of independence cannot result in sacrificing the core values of
`confidentialitv and secrecv. Even if a Iawver were to identify.r with their client to a high
`extent, the information exchanged between them must remain confidential. Even if a Iawver
`fails to complv with the rules governing their professional ethics and conduct, this will never
`result in denial of the lawverrclient privilege. Thev must, after all, continue to con‘iplvr with
`their dutv of confidentialitv and, consequentlv, be able to invoke the lawver—client privilege.
`
`This basic principle also enhances legal certaintyr and serves the public interest of litigants to
`be able to consult a trusted adviser without fear of disclosure. [name of oil companv] was
`justified in trusting that the lawyer-client privilege of all of its lawvers would be protected
`under Dutch law. The lawver profession is confidential bv nature and lawvers cannot
`exercise their profession ifthev do not qualifyr as persons entrusted with privileged
`information. In addition, the lawver-client privilege generallvr ranks higher than the interest
`of fact-finding in criminal proceedings.
`
`Full denial ofthe entitlement to confidentialitv of the information exchanged between
`[name of oil companv} and its fifteen lawvers is, according to the complainants, in conflict
`with ECHR case law, more specifically Articles 6 and a ofthe ECHR.
`
`With regard to the lawver—ciient privilege, there is no reason to treat foreign lawvers
`differentlvr from Dutch lawvers. The lawver—client privilege of foreign persons entrusted with
`privileged information is given the same level of protection in the Netherlands as that of
`Dutch persons entrusted with privileged information.
`
`The examining judge has, however, not established that one of the fifteen lawvers has ever
`demonstrated a lack of independence. The opinion of the examining iudge that the
`independence ofthe invhouse counsels is jeopardised bv the organisational structure ofthe
`Legal Department does not justifv the decision that thev do not oualifv as persons entrusted
`with privileged information and that the confidentialitv of information exchanged between
`them and their client must be lifted. Dn the contrarv, it is a sign of good governance and it is
`in the interest of {name of oil companv] to ensure that the Legal Department is involved at
`the highest companv level in order to protect the organisation against legal risks.
`
`According to the complainants, Dutch law does not support the opinion that the Iawvera
`client privilege of in-house counsels depends on the existence of a professional statute.
`Whether someone is a person entrusted with privileged information within the meaning of
`
`

`

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`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 9 of 35
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`Section 218 DCCP is determined on the basis ofthe nature ofthe position, not by an official
`requirement, such as the existence of a signed professional statute. ln—house counsels also
`have |awyer~ciient privilege. In certain circumstances, they may be obliged to be able to
`present a professional statute. This statute is not constitutive, though, for being able to
`exercise their profession.
`
`Moreover, the professional statute has been explicitly written for lawyers who are a
`member of the Netheriands Bar and, consequently, cannot be observed by foreign non-
`registered lawyers. The professional independence of foreign lawyers is safeguarded by their
`own rules of professional practise. The requirement of a professional statute for non—
`
`registered European lawyers would imply an unjustified administrative partial
`disqualification from their profession. Furthermore, in-house counsels who perform their
`duties abroad cannot be denied the lawyerrclient privilege because they have not signed a
`professional statute that is applicable in the Netherlands.
`
`All in-house counsels have indicated that they are bound by a duty ofconfidentiality on
`account oftheir profession. Although some distinctions can be made with regard to the
`specific duties of in-house counsels, this also entities them to the lawyer-client privilege.
`Oniy in Switzerland do in—house lawyers not have a lawyer—ciient privilege. However, they
`are entitled to this privilege to the extent that Dutch law is applicable.
`
`These in-house counsels have no intention of setting up a lawyer practice in the
`Netherlands, nor can they quaiify as visiting lawyers, as considered by the examiningjudge.
`They are and will continue to be members of the bar in the country of origin: they do not
`perform litigation activities in the Netherlands and they do not act as counsei in Dutch courts
`in lawsuits against government bodies. If it were possible to calla foreign inshouse counsel
`as a witness in the Netherlands and they were not able to invoke the lawyer-client privifege
`on account ofthe non-existence of a signed professional statute, they would be forced to act
`contrary to the rules of professional practice oftheir own bar.
`
`The fact that a lawyer - who is recognised as such and has a lawyer—client privilege in their
`country of origin - can invoice this privilege only after becoming a member of the
`Netherlands Bar has not been laid down and is in conflict with the rationale ofSection 213
`DCCF' and case law. Moreover, the requirement of membership ofthe Netherlands Bar is not
`linlted to the actual situation and does not become valid until the lawyer has the ambition to
`set up a practice and exercise their profession. Non—European foreign lawyers staying in the
`Netherlands and rendering advisory services only, are not required to register [and cannot
`do so} and are still allowed to do their work.
`
`Position ofthe public prosecutors
`
`The public prosecutors argue that lawyers have a lawyer-client privilege in the context of
`rendering legal services to litigants, who contacted them in their capacity of lawyer. They
`
`

`

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`acknowledge that the public interest of fact-finding is secondary to the general interest that
`everyone must be free to contact a person entitled to the IHWYEY'CilEflt privilege for
`assistance and advice, without fear of disclosure of the information exchanged. According to
`the public prosecutors, this right is not universal, however, and its scope differs from country
`to country. The same applies to the specifics of this right in the context of litigation. This is
`even more relevant in the case of in~house counsels.
`
`The in—house counsels, who are at issue in the present lawsuit, are not registered as
`members ofthe Netherlands Bar, nor have they been added to the separate list of foreign
`lawyers who practice as lawyers in the Netherlands under that title. According to the public
`prosecutors, registration under Section lfihllj of the Dutch Counsel Act lAdvocotenwetj is
`required to be able to invoke the privileges attached to the profession of lawyer in the
`Netherlands, such as the lawyer—client privilege. Registration as lawyer with a foreign bar is
`not sufficient.
`
`Nor have the in—house counsels, in the opinion of the public prosecutors, complied with the
`additional requirements imposed on in-house counsels {and their employer]I in accordance
`with rules applicable in the Netherlands. Apart from registration with the Netherlands Bar,
`
`they must have signed the professional statute.
`
`Signing ofthis statute is not only a formality, but relates to one of the most important core
`values of the lawyer's practice, namely the independent exercise of their profession. The
`importance of this basic principle has been underlined by the judgement of the European
`|Clutirt oflustice in the Akzo-Nobel case {EDIE}. LIN BNSSTM} — apart from the applicability of
`this judgement outside the context of competition law.
`
`Contrary to what the complainants argue. the public prosecutors take the position that the
`in—house counsels concerned, as in-house counsels of [name of oil company] and in the
`context of their advisory work with regard to the [name of oil field] case, which they
`performed for the head office in The Hague, are subject to Dutch law and that they are not
`
`entitled to the lawyer—client privilege under this law and in the given circumstances.
`
`The independence ofthese in—house counsels is insufficiently safeguarded.
`
`As these in—house counsels work or worked more or less permanently in the Netherlands,
`they cannot invoke the facilities offered to visiting lawyers as referred to in Section 16f of
`paragraph 2a ofthe Dutch Counsel Act.
`
`The Public Prosecution Service distinguishes the following categories of in-house counsels of
`[name of oil company] :
`
`— It is the case that for the inshouse counsels based in the Netherlands and registered in
`EUXEER countries or Switzerland, the documents during these proceedings show that they
`did not exercise their profession in the Netherlands on an occasional basis, but permanently,
`namely for some years. The permanent exercise of the profession of lawyer in the
`Netherlands, either in-house or external, is subject to the requirement that the in-house
`
`counsel concerned was registered on the roll ofthe Netherlands Bar in accordance with
`
`

`

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`Section 15h of the Dutch Counsel Act. Given that none ofthe in—house counsels were, thet...r
`
`were not qualified to practise as lawyers in the Netherlands and, conseouentlv, cannot
`
`invoke the lawver-ciient privilege of Section 213 DCCP.
`
`- The in—house counsals based in the Netherlands and registered in third countries are onlv
`allowed to work as Iawvers — either inshouse or external - once they,r have completed the
`admission procedure on the basis ofthe Dutch l[lounsel an [as referred to in Section Billic}
`ofthe Dutch Counsel Act}. As none of the in—house counsels completed the admission
`procedure, thev were [and are} not allowed to work as lawvers in the Netherlands [either in-
`house or not}. That is whv thev cannot invoke the lawver—client privilege of Section 213
`DCCF’.
`
`— The in-house counsels based outside the Netherlands do not have a lawyer—client privilege
`with regard to rendering advice regarding [name of oil field], because thev worked for the
`Dutch head office and should have observed the Dutch rules when performing their advisorv
`work. This means that thei,r also cannot invoice the lawversclient privilege of Section 218
`DCCP.
`
`Possiblv, some lawvers can be designated ”visiting lawvers“ as referred to in Section 16c of
`
`paragraph 2a of the Dutch Counsel hct. In that case, both the requirements and rules of
`professional practice of the country.r of origin and those applicable in the Netherlands appiv.
`They.r must also have signed the professional statute. There is no reason to suppose that thev
`cannot compli,r with that requirement.
`
`[name of oil companv], as em plover, should have verified which obligations were involved in
`the cross-border work performed bv the in—house counsels engaged.
`
`Assessment of the complaint
`
`The case centres on the provisions of Section 213 DCCP:
`
`”Those who on account of their position, profession or office are bound by a duty of
`
`confidentialityr may request to be excused from giving evidence or answering certain
`
`questions, but oniv with regard to information entrusted to them as suc 3’
`
`The complainants have emphasised on multiple occasions that iawvers have traditionally.r
`been regarded as persons entrusted with privileged information within the meaning of this
`provision. This is not subject to debate to the extent that their opinion relates to external
`
`lawvers who perform their work in the countryr in which thev are registered as lawvers
`
`[hereinafter referred to as: ”external Jawvers”). This is not the tvpe of lawver at issue in this
`case.
`
`This case relates to fifteen in—house counsels of [name of oil companv}, who are all in the
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`empiovment of the [name ofoii companv] organisation.
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`Contrarv to what is argued bv the complainants, the Court is of the opinion that a distinction
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`must be made between both tvpes of Iawvers under applicable Dutch law in general and
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`with regard to the applicabilityr of Section 218 DCCP in particular. The Court considers the
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`following in this respect.
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`

`

`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 12 of 35
`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 12 of 35
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`Distinction between external lawyers and in-house lawyers?
`
`It must be stated first and foremost that countries are in principle free to make regulations
`on the basis of which the capacity of lawyer is obtained in their country and to lay down
`requirements for the way in which that profession, either in—house or not, can be exercised
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`there. The same applies to the privileges that are attached to the profession and the
`conditions that must he met.
`
`Applicable legislation in the Netherlands with regard to in-house lawyers is based on, among
`other things, the ”Cohen lawyer”, that was introduced in 1998. Although in—house lawyers
`were common before that time, the introduction of this type of lawyer is also relevant to the
`assessment ofthe position of today's inshouse lawyers. The introduction of in—house lawyers
`demonstrates that their position is apparently interpreted differently from that of external
`lawyers.
`
`The fact that external lawyers must be distinguished from in-house lawyers is clearly
`confirmed in the Legal Profession Regulations {Verordening op de Advocotuur, hereinafter:
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`the Regulations] as laid down by {the Board of Representatives of} the Netherlands Bar and
`its explanatory notes.
`
`Article 5.12 stipulates {and stipulated in earlier versions} that lawyers can only exercise their
`practice in the employment of an employer, such as for example [name cfoil company]
`(added by the Court], lfthey are bound by a professional statute that has been signed by
`them and their employer. The explanatory notes explain that a professional statute is
`required for all invhouse lawyers. And: r”The professional statute protects the lawyer's
`independent practice against unwanted influence by their employer to whom they are by
`definition hierarchically subordinate.” it can be concluded from this that the innhouse
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`lawyer's independence cannot be regarded as self-evident according to the Netherlands Bar.
`Despite the rules of professional practice that are applicable to in—house lawyers and despite
`their and their employer's good intentions, this is, according to the Netherlands Ear,
`insufficient for exercising the profession of lawyer in an in-house role and invoking the
`privileges attached to that profession.
`
`The complainants argue that independence on the one hand and confidentiality, giving rise
`to the duty of confidentiality and, consequently, the lawyer~ciient privilege on the other,
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`must be regarded as two separate core values of the profession of lawyer. In their opinion,
`there is no direct relationship between a lawyer‘s independence and confidentiality.
`However, the Regulations do not support such a strict separation. The explanatory notes to
`Article 5.1 read as follows:
`
`”A lawyer must be able to serve their client's interests in a partial and independent capacity.
`This follows from some of the lawyer‘s core values, such as independence, confidentiality,
`integrity and portiaiity. A lawyer's independence is essentiolfor their clients to trust them.
`
`

`

`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 13 of 35
`Case 1:19-cv-11586-FDS Document 214-4 Filed 07/30/21 Page 13 of 35
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`Their independence is aiso indispensabie for the proper interpretation of the core vaiues of
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`canfidentiaiity and partiaiity. "'
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`According to the Netherlands Bar, which - according to the complainants ‘ is the competent
`body in this respect, independence and confidentiality cannot be regarded separately. What
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`is more, confidentiality depends on the independent position a lawyer is deemed to have. As
`becomes apparent from Article 5.12 of the Regulations, which was discussed above, signing
`of a professional statute is a constitutive requirement for sufficiently safeguarding the
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`independent position of in—house lawyers. in this connection, re