Confidentiality and right to refuse to testify in collaborative practice
By means of Priska Voskuil – van Dijk
An important rule of the game in collaborative practice is confidentiality. Parties must be able to trust that if no settlement agreement is reached, no statements will be made in legal proceedings about what was discussed in the collaborative practice. This confidentiality can be lifted if both parties agree to this. A lawyer can also invoke his or her statutory right to refuse to testify.
Article 7.3 and 7.6 in the participant agreement (model www.vvcp.nl) read as follows in this regard:
7.3 If the collaborative divorce ends without signing a divorce agreement, the participants will not make any statements in any proceedings about what was discussed in the collaborative divorce. Nor are they entitled to submit reports and other documents as referred to in Article 7.1 to the court in proceedings.
7.6 If no (separation) agreement has been reached between the partners within the meaning of Article 6.1 and proceedings are being conducted between them regarding the consequences of the divorce and they both wish the confidentiality referred to in Article 7.1 to be lifted, the provisions of Article 7.3 will not apply between them. However, a lawyer involved in a collaborative divorce may at all times invoke his right to refuse to testify.
From what moment does the confidentiality of Article 7.3 apply?
This question played a role in an (unpublished) ruling by the Amsterdam Court of Appeal dated 29 May 2018. This case concerns a divorce case that initially started with a 5-way conversation. During this 5-way conversation, the participation agreement was discussed, but it was not signed at that time. It was agreed (at least as stated in the ruling) to first make the divorce notification and to sign the participation agreement later. The participation agreement was signed approximately 3 months after the 1and 5-conversation signed. The collaborative divorce did not result in a signed agreement and the parties started litigation. In the proceedings, the woman calls her former collaborative divorce lawyer to testify about the content of a telephone conversation between her and her collaborative divorce lawyer on the day of the 1and 5-conversation. During the witness hearing, the collaborative divorce lawyer invokes confidentiality in view of article 7.3 of the participation agreement and his statutory right to refuse to testify.
What does the Court rule?
The court rules that the collaborative divorce lawyer is not entitled to a contractual right of non-disclosure within the meaning of Article 7.3 of the participation agreement for the period prior to the date of signing of the participation agreement. The court considers that the participation agreement does not contain a provision stating that the agreement also applies to contacts/consultations held prior to the date of signing between (one of) the spouses and the lawyer(s).
With regard to the lawyer's appeal to the statutory right to refuse to testify, the court considers that, according to settled case law, the lawyer can determine for himself or herself what falls under his or her right to refuse to testify and that, as a result, the judge has only a very narrow margin of appreciation to assess whether the lawyer is right or wrong to invoke his or her right to refuse to testify. However, this right to refuse to testify is not absolute and must be assessed per question. The lawyer must appear as a witness and decide per question whether he or she will answer or whether he or she will (again) invoke his or her statutory right to refuse to testify, according to the court.
Conclusion
Based on the facts and circumstances presented, the Court's ruling is not unexpected. Contractual confidentiality within the meaning of art. 7.3 in the participation agreement applies from the date of signing the participation agreement. If contractual confidentiality within the meaning of art. 7.3 must also apply to an earlier phase, this must be expressly agreed. The lawyer can always invoke his or her statutory right to refuse to testify. It will be assessed on a case-by-case basis what the lawyer has been entrusted with in his or her capacity as a lawyer and whether the lawyer can rightly invoke his or her right to refuse to testify.
