A partner of State Attorney Pels Rijcken was sentenced to disciplinary action by the Court of Discipline on Friday for his actions as a lawyer for the Public Prosecution Service. According to the country’s highest disciplinary judge, Willem Heemskerk has “seriously damaged confidence in the legal profession” by using confidential emails from other lawyers in the fraud case involving asset manager Box Consultants.
The Court considered suspending Heemskerk, but ultimately imposed a reprimand. Another factor was that during the handling of the disciplinary case he acknowledged that he had acted incorrectly “with the knowledge of today”, as appears from the pronunciation.
Due to a suspicion of fraud, the Public Prosecution Service started a criminal investigation ‘Castor’ into Box Consultants, a leading Brabant asset manager, in 2013. The FIOD investigation service raided the company in March 2015, which then called in the Amsterdam law firm Stibbe. Shortly afterwards, the FIOD secretly seized Box’s external mail server, as a result of which confidential correspondence between Box and his lawyers also ended up in the hands of the judicial authorities.
Such emails are subject to the right of non-disclosure: the right of lawyers to keep information provided by clients confidential. At the end of 2015, Heemskerk was asked by the Public Prosecution Service to advise whether some of those seized emails could be used for a disciplinary complaint against a Stibbe lawyer. He studied the emails and gave positive advice.
The disciplinary judge blames Heemskerk for taking note of those emails from Stibbe on which the right of non-disclosure rested. At the very least, he should have consulted the dean – supervisor of the legal profession – before doing so. Instead, he relied “completely” on the Public Prosecution Service’s position that the emails did not fall under the legal privilege.
According to the disciplinary judge, Heemskerk has thus violated three important core values for lawyers: independence, integrity and decency. “The social interest that everyone should be able to contact a lawyer with legal privilege freely and without fear of disclosure of what has been entrusted is one of the foundations of the rule of law,” writes the Court of Discipline. “This requires that a lawyer respect the right of non-disclosure of another lawyer.”
Havoc
Heemskerk, who has worked at Pels Rijcken since 1992, was assisted in his disciplinary case by three lawyers from two prominent Amsterdam firms: Allen & Overy Shearman and Lemstra Van der Korst. The Court of Discipline is critical of their procedural attitude and notes that they wrongly “continued to take the position up to and including the speaking notes on appeal that [Heemskerk] was allowed to take note of the emails”.
The fact that it was emphasized that the Public Prosecution Service is “not just a client” also rubbed the Court the wrong way. “This procedural attitude shows a deficient insight into the core value of independence in particular.”
The disciplinary complaint against Heemskerk comes from the law firm Stibbe, which has conducted numerous proceedings in recent years to expose violations of the right of non-disclosure by the Public Prosecution Service and Pels Rijcken.
That led to a legal trail of havoc. In 2023, the court ruled that the right of non-disclosure had been repeatedly and structurally violated because investigating officers had access to thousands of confidential lawyer emails. Shortly afterwards, the Public Prosecution Service dismissed the criminal case against Box Consultants. Last year, the Supreme Court also ruled that only an independent judge – and not a public prosecutor – may assess whether seized emails are confidential.
State attorney Pels Rijcken was also damaged. NRC revealed earlier this year that the office received more than 3 million euros to assist the Public Prosecution Service in proceedings surrounding the violation of the right to non-disclosure. In addition to Heemskerk, the state attorney himself was also sentenced to disciplinary action last year for his role in the file – a unique event. Reimer Veldhuis received a warning from the Discipline Board.
In response to the conviction of Heemskerk speaks Pels Rijcken says on his own website of “a hard lesson” and acknowledges that “a wrong decision” was made at the time and that the dean should have been consulted.
NEW: Give this item as a gift
As an NRC subscriber you can subscribe every month 10 articles give as a gift to someone without an NRC subscription. The recipient can read the article directly, without a paywall.
The journalistic principles of NRC