Recent developments regarding internal investigations conducted by attorneys-at-law in the Netherlands

Floris Dudok van Heel
Sjöcrona van Stigt Advocaten, Rotterdam
dudokvanheel@svs.law

Sabine ten Doesschate
Sjöcrona van Stigt Advocaten, Rotterdam
tendoesschate@svs.law

In the Netherlands, as in the rest of the world, lawyers conduct internal investigations at the request of clients. Contrary, however, to many other countries, for a long time, the way such an investigation should, or may, be performed, has been quite vague. As a result, internal investigations have been a regular topic of debate in recent years, because of the risk of the attorney’s core values getting at odds with the intended impartiality of the investigation carried out. Considering the role and position of the suspect company’s attorney-at-law, critical comments have been made doubting the independence of the investigation report and, therefore, its usefulness for professional judgment by the Netherlands Public Prosecution Service (PPS) and/or a judge.

It has only been relatively recent that more guidelines as well as disciplinary ‘slaps on the wrist’ have been reviewed by the Netherlands Bar and in disciplinary proceedings. The general principle in the Netherlands is, according to the Netherlands Bar, that conducting internal investigations can be part of the professional practice of the attorney-at-law and is, thus, permitted. The attorney must, however, make sure that there can be no misunderstanding about their partial role in such internal investigations and must safeguard their independence. After all, the attorney-at-law is the suspect’s partial advisor and, therefore, in essence always biased.

The independence, partiality and confidentiality of lawyers in the Netherlands have their basis in the Counsel Act and the Rules of Professional Conduct 2018, issued by the General Council of the Netherlands Bar. Article 10a, paragraph 1 of the Counsel Act provides that the attorney-at-law is:

a. independent towards his client, third parties and the cases in which he acts in this capacity;

b. partial to looking after the justified interests of his client;

[…]

e. a confidential adviser who must maintain confidentiality within legal limits.

Rule 2 of the Rules of Professional Conduct regards the core values independence and partiality for attorneys-at-law in the Netherlands:

1. In the exercise of his profession the attorney-at-law will avoid the risk of his/her independence being put in jeopardy.
2. The interest of the client, and no other interest, will determine the way in which the attorney-at-law handles his/her cases.
3. […].

In light of internal investigations by attorneys-at-law being conducted – and taken into account by the PPS – more frequently, and the objections raised against this development questioning the value of those investigations conducted by the partial counsel for the alleged suspect company, the Netherlands Bar drew up additional guidelines. To that end, in May 2021 the General Council of the Netherlands Bar, with reference to several disciplinary proceedings regarding internal investigations conducted by attorneys-at-law, issued an additional explanatory note on Rule 2, paragraph 2 of the Rules of Professional Conduct.^[1] Emphasising the attorney’s obligation to remain in compliance with the core values and rules of professional conduct while carrying out internal investigations, the Bar addressed six key focus areas for the attorney-at-law.

The attorney should, according to the Netherlands Bar, in that capacity:

1. Leave no room for discussion as to their role as the client’s partial representative. The attorney should, to that end, make clear the purpose and scope of the internal investigation and who is his or her client.
2. Respect the rights of any party involved in the internal investigation to an adversarial proceeding and comply with applicable protocols (if any).
3. Prevent the occurrence of any (apparent) conflict of interest, that is, by investigating matters which the attorney(‘s firm) has previously worked on or subjects of the investigation the attorney has/had a close connection with.
4. Be aware that the report of the internal investigation could (unintendedly) become public and/or issued to a third party, instead of (only) to the client.
5. Respect their own legal privilege, even if the client should ask the attorney to disclose privileged findings of the internal investigation. It should be noted that, even if the client relinquishes the confidentiality of the information, the attorney has an independent duty to weigh whether or not he or she should preserve the confidentiality.
6. Prevent their independence from being compromised by a third party (for instance, an investigating authority) exercising influence on the (results of the) investigation.

The general principle remains, thus, also during the conduct of internal investigations, that the attorney-at-law is partial. That can prove to be a position hard to reconcile with the claim of internal investigations being independent. In recent critical comments of both lawyers and non-legal professionals, as well as in disciplinary proceedings against attorneys-at-law, exactly that area of tension has been a topic of debate.

In an internal investigation conducted by the attorney-at-law of a Dutch television production company regarding alleged sexual abuse during the production of a television series, the company called for victims and witnesses to report to the investigating lawyers to be interviewed. That call created a lot of media attention and resulted in considerable outrage, with the common point of criticism that the partial lawyer of the production company, serving only that client’s interests, is not the go-to for victims of serious offences in the course of independent investigation. The PPS and police even followed up with a press release urging victims to report to the police before speaking with others.

Furthermore, earlier this year, complaints were submitted against another attorney-at-law with regard to an internal investigation. The complaints were declared valid by the disciplinary board, since the attorney-at-law conducted an internal investigation that could not, according to the disciplinary board, be considered to be ‘independent’ as, in this particular case, was ordered by another (civil) court in a prior decision. The attorney’s key capacity of being his client’s partial representative was judged incompatible with such a requirement.

In conclusion, recent developments in the Netherlands have both confirmed that conducting internal investigations can be part of the professional practice of the attorney-at-law as they have revealed risks for the attorney-at-law conducting such investigations (for example, of getting involved in disciplinary proceedings for alleged violation of their core values and rules of professional conduct). The Netherlands Bar’s additional explanatory note on this matter, as well as practice in recent extensive criminal investigations, have shown the practical use of the engagement of the attorney-at-law in conducting internal investigations. The attorney-at-law should, however, always keep in mind the rules for their professional conduct and core values and not let the practical use of internal investigations intervene with those.

Addendum 

Following the finalisation of this contribution, the Amsterdam Disciplinary Board rendered a ruling regarding the conduct of internal investigations performed by attorneys-at-law[2]. In short, the disciplinary board emphasised that an attorney-at-law can either act as their client's partial representative or as an independent investigator. A combination of these two roles is deemed unacceptable. If it is foreseeable that the results of the investigation can (also) be used for external purposes, both the investigator and the investigation must remain within a certain framework of roles that guarantees the independence. 

Notes

[1]          See www.advocatenorde.nl/standpunten/intern-feitenonderzoek.

[2]          Amsterdam Disciplinary Board, 25 July 2022 (ECLI:NL:TADRAMS:2022:140)