Anwar et al v. Fairfield Greenwich Limited et al

Filing 1178

FILING ERROR - DEFICIENT DOCKET ENTRY - FILER ERROR - (SEE DOCUMENT # 1180) - DECLARATION of Professor Dr. Marielle Koppenol-Laforce in Opposition re: #1160 Memorandum of Law in Opposition,. Document filed by Rosa Julieta A De Pujals, BPV Finance (International) Ltd., Joaquina Teresa Barbachano Herrero, Baymall Investments Ltd, Blockbend Ltd, Ricardo Rodriguez Caso, Eastfork Assets Ltd, Eduardo Child Escobar, Fairfield Sentry Ltd., David I. Ferber, Gerico Investments, Inc., Headway Investment Corp., Wong Yuk Hing de Lou, Shimon Laor, Ricardo Lopez, Mailand Inevstment Inc., Maridom Limited, Moises Lou Martinez, Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Frank E. Pierce, Frank E. Pierce Ira, Jose Antonio Pujals, Alicia Gaviria Rivera, Sand Overseas LimitedSand Overseas Limited, Stanchart Securities International, Inc., Standard Chartered Bank International (Americas) Limited, The Knight Services Holdings Limited, Maria Akriby Valladolid, Nadav Zohar, Ronit Zohar. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Barrett, David) Modified on 8/27/2013 (lb).

Exhibit D

Translated Excerpts

CERTIFIED TRANSLATION
OF EXCERPTS FROM THE DECISION AND OPINION IN
IN RE DE BOER & VAN KEULEN BELASTINGADVISEURS ET AL.,
NO. 1530, NJ 1986, 814 (NETH. SUP. CT. MAY 6, 1986)
NJ 1986, 814
No Privilege for Tax Advisors
Supreme Court (Criminal Division), May 6, 1986, no. 1530, LJN: AB9405
Relevant Statute: Art. 218 Code of Crim. P.

Decision
(. . .)
Decision on final review from a decision of the District Court of Breda dated May 29,
1984 [NJ 1984, 664, reference added by editors] on a petition pursuant to Art. 552a
Code of Crim. P., filed by:
1. De Boer & Van Keulen Belastingadviseurs, LLP, with domicile in Tilburg,
2. Johannes Arnoldus P., Esq., born in Utrecht on Oct. 2, 1949, with domicile in
Geldermalsen.
1. The decision in the court below
The District Court has rejected the petitioners’ petition for the return of the files as
described in that decision, and denied their request in the alternative to seal the files
until all rights of appeal have expired. A copy of the decision at issue is attached to the
Court’s decision below (see NJ 1984; eds.).
2. This appeal
De Boer & Van Keulen, a limited liability partnership, and J.A. P., Esq. filed this appeal.
(. . .)
4. Assessment of the grounds for appeal
4.1 This appeal raises the question whether a tax advisor has, by virtue of his
profession, the right to excuse himself from testifying in court.

4.2 As a preliminary matter, we note that the legal professional privilege, as an
exception to the rule that everyone is obligated to provide testimony in court, belongs to
only a limited group of persons who, by virtue of their office or profession, have an
obligation to maintain the confidentiality of everything that was shared with them in that
capacity and whose function in society requires that society’s interest in establishing the
truth in legal proceedings be overridden by its interest in ensuring that everyone can
turn to them for support and advice, freely and without fear that the content of their
conversations will be disclosed. A licensed attorney and a civil law notary are among
such persons because their function as providers of legal services requires that
everyone may turn to them freely and without fear of disclosure of what was discussed
or put in writing.
4.3 The question is now whether a tax advisor, who may also be considered a provider
of legal services, should be granted the same professional privilege.
In answering this question it is of significance that, in principle, anyone may provide
legal services in the Netherlands, and a great variety of people provide such services
professionally, whether they work independently or as employees within an
organization. Granting the legal professional privilege to all these persons would not be
consistent with the aforementioned exceptional character of the privilege. As a general
rule—i.e., unless an exception as recognized in HR Oct. 25, 1985, NJ 1986, 176
applies—providers of legal services who are not licensed attorneys or a civil law notary
must therefore be denied the legal professional privilege.
4.4 There is no reason to create an exception for tax advisors. We take into
consideration that tax advisors are not a homogenous group, and that the law does not
prevent anyone from practicing as a tax advisor.
It is also of significance that the laws governing the legal profession do not assign tax
advisors any task that would require clients to turn to them to guard their interests.
Under these circumstances, a tax advisor cannot be considered to be part of the
aforementioned limited group of fiduciaries entitled to the legal professional privilege.
(. . .)
5. Conclusion
Because petitioners offer no valid grounds for reversal, and the Supreme Court finds no
grounds for sua sponte reversal, the Court must reject the appeal.
5. Decision
The Supreme Court rejects the appeal.
(. . .)

Original

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