It should be assumed as a general rule that all documents prepared by a lawyer (acting as a lawyer) or any correspondence from or to such lawyer, are protected, regardless of where they are held, even if possessed by the client. This is because professional secrecy is also based on a fundamental right protecting privacy, and because certain information may be linked to the rights of defense of the client. However, each situation must be judged on its own facts.
The Act of 1 March 2000, which established the Institute of In-house Legal Counsel ("Institute"), grants confidentiality in respect of legal advice and opinions provided by members of the Institute for the benefit of their employer and acting in their capacity as legal counsel. However, the scope and effect of that confidentiality have been controversial and uncertain. It has been argued that this confidentiality is not the equivalent of professional secrecy, and consequently, that a member of the Institute would not be entitled to invoke this confidentiality in order to refuse to hand over documents in their possession or to refuse to testify before the courts.
In a landmark decision of 5 March 2013, the Brussels Court of Appeal (CoA) ruled that in-house counsel's legal advice (including the request for such advice, related correspondence and preparatory materials) are covered by a protection equivalent to professional secrecy in investigations under the Belgian Competition Act.
This decision is notable because it disregards the Akzo decision of the European Court of Justice, which denied in-house counsel professional privilege in EU antitrust proceedings (please see the European Union chapter).
The CoA based this protection on a fundamental right derived from article 8 of the European Convention of Human Rights (ECHR) and article 7 of the EU Charter of Fundamental Rights, which protect the right to privacy and private correspondence. By judgment dated 22 January 2015, the Supreme Court dismissed the appeal filed by the Belgian Competition Authority against the said decision. As a result, it is now settled that legal advice provided by in-house counsel (who are members of the Institute) to their employers and in their capacity as legal counsel, is protected by legal professional privilege, except in antitrust investigations, carried out by the EU Commission (Akzo ruling).
While the concept of in-house counsel privilege has been recognized by the Belgian Supreme Court, not all communications of all in-house counsel are protected.
The confidentiality protection was derived from the Act of 1 March 2000 regulating the Institute, and consequently only applies to in-house lawyers who are members of that Institute. In addition, the privilege only applies to opinions which the in-house counsel has addressed to their employer (as opposed to third parties), and confidentiality is lost in the event that the documents are sent to or shared with a person outside the company. Furthermore, confidentiality is only granted in respect of legal opinions rendered in the capacity as legal counsel, and not with respect to advice given in a management or operational capacity.
Finally, whilst the CoA has only dealt with national competition proceedings, it has applied the legal privilege protection on the basis of article 8 of the ECHR, and it seems that the protection can therefore probably apply to any other enforcement measures, whether civil, administrative or criminal. However, the protection does not apply to competition investigations by the European Commission pursuant to the EU competition law provisions, where the actual Akzo ruling will remain fully applicable.
Professional secrecy applies to all lawyers governed by professional bar rules and entitled to practice their profession in any of the EU member states. The Code of Conduct for Lawyers in the European Union (adopted by the Council of the Bars and Law Societies of the European Union) stipulates that confidentiality is a primary and fundamental right and a duty of the lawyer that serves the interest of the administration of justice as well as the interest of the client. An additional basis for professional secrecy is also found in article 8 of the ECHR. In accordance with these principles, foreign lawyers entitled to practice in the EU are protected by professional secrecy in Belgium. This applies to all lawyers registered with a bar association of an EU member state. If an EU lawyer is registered with the bar in his home country, and also on the list of European lawyers ("E-list") with a Belgian bar, then Belgian professional secrecy will fully apply, pursuant to the principle of "double deontology." If an EU or non-EU foreign lawyer is not registered with the Belgian bar, the exact scope and effect of professional secrecy is not completely clear, and yet untested.
Various laws have extended professional privilege to statutory auditors and external tax and accountancy professionals affiliated with recognized professional organizations. While the primary description of this confidentiality privilege equates to a lawyer's professional secrecy, it is in reality also recognized that lawyers and nonlegal professionals have quite different roles in society. As a practical result, there is not an identical confidentiality protection between lawyers and nonlegal professionals. The privilege applicable to those professionals is thus commanded by the nature of their profession and membership to a professional organization, rather than the connection to any legal matter.
Legal assistants are considered representatives of the law firm. The information shared with legal assistants is covered by legal privilege.