No, attorney-client communications, such as e-mails, remain privileged even when sent to the client. The same goes for documents exchanged between the lawyer and the client.

Be that as it may, the right to legal professional privilege is the personal right of the lawyer. If the lawyer takes the position that the communication or document contains information which is covered by their right to legal privilege, this position must be respected, unless this position is evidently incorrect. For that purpose, it is irrelevant whether the information is held by the lawyer or their clients.

While the client or legal entity that has turned to a lawyer for advice or assistance does not have a derivative right to legal professional privilege, it does have a legitimate interest to refuse the disclosure of privileged documents. This follows from the general principle under Dutch law that the right to turn to a lawyer freely and without fear of publication of what has been discussed prevails over the public interest of bringing the truth to light in court.

Dutch law distinguishes between two types of in-house lawyers: (i) those admitted to the bar, known as 'Cohen-advocaten'; and (ii) those not admitted to the bar.

In-house lawyers not admitted to the bar do not enjoy the right to legal privilege and are not bound by the bar rules of professional conduct. Their communications with, for example, employees, officers or directors of the company are not covered by legal privilege.

In-house lawyers admitted to the bar enjoy the same rights and obligations as external lawyers admitted to the bar, subject to several conditions specified by the Dutch Bar Association. One of the most important conditions is that Dutch in-house lawyers must demonstrate their independence from their employer by signing the professional statute (professioneel statuut), for which a template is available via the Netherlands Bar Association website. Non-Dutch in-house lawyers should also be registered at their local bar, be adhered to professional rules and sign a similar professional statute to safeguard their right of privilege.

The scope of legal professional privilege only extends to information that has been entrusted to the lawyer in their capacity as in-house lawyer (e.g., not in a private or business context). This should be determined on a case-by-case basis, whereby it is of particular importance whether the services performed by the in-house lawyer are related to pending or expected legal proceedings.

In the context of EU competition law, in-house lawyers cannot rely on the right of legal professional privilege because it is assumed that they lack sufficient independence in relation to their employers.

Yes, provided that one of the in-house lawyers can rely on legal privilege and except for communications with a lawyer who works in the field of EU competition law.

Yes, subject to certain conditions. As a general rule, the right of privilege is acknowledged when the foreign lawyer has a right to legal privilege in their home jurisdiction as well.

In 2022, the Dutch Supreme Court clarified the right of legal privilege in relation to foreign in-house lawyers. The Dutch Supreme Court ruled that a distinction should be made between (i) Dutch in-house lawyers, (ii) so-called "visiting in-house lawyers" and (iii) other foreign in-house lawyers.

As mentioned above, Dutch in-house lawyers registered at the Netherlands bar must demonstrate their independence by signing the professional statute for which a template is available via the Netherlands Bar Association website. Simply put, foreign in-house lawyers, whether visiting or not, should also sign an equivalent professional statute to safeguard their right of legal privilege.

So-called visiting in-house lawyers (lawyers — i.e., the equivalent of an advocaat — registered to the bar in an EU member state, jurisdictions within the European Economic Area, and Switzerland) are subject to the same rules as Dutch lawyers and must therefore also sign the professional statute or a similar agreement that sufficiently ensures their independence toward their employer, provided that this is permitted under the laws of their country of origin.

Other foreign lawyers (lawyers registered to the bar in jurisdictions outside the EU, the European Economic Area and Switzerland) are subject to a two-pronged test to invoke legal privilege:

• The foreign lawyer must be able to invoke legal privilege in their home jurisdiction.
• The right to legal privilege should also exist for a Dutch lawyer if they would have performed the specific activities in question.

The Supreme Court also found that in order to invoke legal privilege, a foreign in-house lawyer must be able to demonstrate that similar safeguards exist as the ones included in, and safeguarded by, a professional statute.

Not in principle, but an exception exists for nonlegal professionals who are instructed to assist an attorney under that attorney's right of legal privilege. Nonlegal professionals, e.g., staff and secretaries, who are employed by a lawyer or nonlegal professionals who provide services or information for the benefit of a lawyer, e.g., accountants and third-party experts, enjoy a so-called 'derivative right of legal professional privilege.' This derivative right of legal privilege prevents a party from seeking disclosure of privileged information from these nonlegal professionals. The analysis of whether certain information is subject to legal privilege remains with the lawyer from whom the right to privilege is derived. Hence, it is customary for the nonlegal professional to consult with the lawyer in the case of disclosure requests and use their derivative right of legal professional privilege in the same manner as the lawyer.