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Netherlands: Attorney-Client Privilege and Telephone Conversations

(Sept. 8, 2010) It was indicated in a letter from the Netherlands Minister of Justice to the Lower House of the Dutch Parliament, released on August 23, 2010, that as of 2011 confidential telephone conversations between lawyers and their clients who are suspected criminals and subjects of police wiretapping will be automatically destroyed. (Press Release, Dutch Ministry of Justice, Confidential Telephone Conversations of Lawyers Automatically Destroyed (Aug. 23, 2010), http://engli

Destruction of the recorded conversations will be effected immediately, and therefore such conversations will not be recorded or listened in on, by a technical facility at the National Police Services Agency (KLPD); this is made possible by the lawyers' use of pre-determined telephone and fax numbers made known to the police in advance via the Netherlands Bar Association. The facilities are now being installed in police interception centers and procedures are being instituted to collect lawyers' relevant telephone numbers, with an expected implementation date of the first half of next year for the new working method. (Id.)

Pursuant to the Dutch Code of Criminal Procedure, section 126aa, paragraph 2, “conversations between persons whose phones are tapped and their lawyers must be destroyed” to ensure attorney-client confidentiality, but in practice “this destruction did not always occur.” The KLPD technical facility is to make sure this will no longer be the case, provided they have the relevant phone/fax numbers in advance. (Id.; art. 126aa, Wetboek Van Strafvordering [Code of Criminal Procedure] [in Dutch] (Jan. 15, 1921; in force on Jan. 1, 1926, as last amended on Aug. 11, 2010),

Lawyers who fail to fulfill their duty of care in handling protected telephones and faxes will face disciplinary measures. By agreement with the General Council of the Netherlands Bar Association, supervision of that obligation will be carried out by the regional Deans. (The Deans are heads of the Councils of Supervision that lead each district bar association.) Should a client pressure the lawyer to hand over the protected phone, the lawyer must report the abuse immediately to the bar association. (Id.; Organisation: Complaints and Disputes, Nederlandse Orde van Advocate [Netherlands Bar Association] (last visited Sept. 7, 2010).)

It had previously been proposed that the conversations between persons who hold confidential information be held for a certain period of time, but that was deemed unnecessary, given that “the Public Prosecution Service has other ways of gathering information about the possible abuse of telephone numbers” of such persons, in which cases the Service will inform the bar association. The Service also has the authority to retrieve the traffic data of protected phones for which there are grounds to suspect abuse and, with the permission of the examining magistrate, to tap the phones of lawyers who themselves are subject to criminal investigations. (Id.)