Legal Privilege

THE CONFIDENTIALITY OF COMPANY LAWYER'S ADVICE

As company lawyer, you ensure that your company acts correctly and assumes its legal responsibilities. In the midst of the exciting and sometimes hard reality of doing business, you help build your company's strategy by keeping ‘your finger on the pulse’, reacting quickly and looking for (simple) solutions.

For this, you must be able to speak openly within your company and receive all relevant information, and this is precisely why ‘Legal Privilege’ for company lawyers is so fundamental.

LEGAL FRAMEWORK

The Act of 1 March 2000 establishing the Institute for company lawyer stipulates that the legal advice provided by an company lawyer as a member of the Institute of Company cawyers is confidential for the benefit of the company lawyer’s employer.

This confidentiality, also called ‘legal privilege’, has also been recognised by case law, notably in the Belgacom judgment of the Brussels Court of Appeal of 5 March 2013, which was confirmed by the judgment of the Court of Cassation of 22 January 2015.  

The confidentiality of company lawyer's advice is based on the fundamental rights of the European Convention on Human Rights (ECHR) set out in Articles 6 (right to legal assistance) and 8 (right to privacy).

• When is advice covered by confidentiality?
  Article 5 of the Act of 1 March 2000 establishing an Institute of Company lawyers states: “The advice provided by the company lawyer, in favour of his employer and in the framework of his function of legal counsel, is confidential”.
  
  Case law has confirmed that requests for advice and preparatory documents are also covered by this confidentiality. In the important Belgacom judgment of 5 March 2013, the Brussels Court of Appeal clarified that the “opinions” of company lawyer also include correspondence relating to the request for advice, draft opinions and other preparatory documents.
  
  
• What are the consequences of this confidentiality?
  The opinion of company lawyer and the documents relating to that opinion may not be consulted or copied by persons other than the addressee(s), nor may they be seized by the authorities or the courts, for example in the context of a search. The company lawyer cannot be obliged to answer questions about the content of his or her opinions or about the facts communicated to him or her in this context.