Anwar et al v. Fairfield Greenwich Limited et al

Filing 1180

DECLARATION of Professor Dr. Marielle Koppenol-Laforce in Opposition re: #1160 Memorandum of Law in Opposition,. Document filed by Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Harel Investment and Financial Services Ltd., 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), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Barrett, David)

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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 NJ 1986, 814 Page 1 of 7 8-5-2013 NJ 1986, 814 Page 2 of 7 8-5-2013 NJ 1986, 814 Page 3 of 7 8-5-2013 NJ 1986, 814 Page 4 of 7 8-5-2013 NJ 1986, 814 Page 5 of 7 8-5-2013 NJ 1986, 814 Page 6 of 7 8-5-2013 NJ 1986, 814 Page 7 of 7 8-5-2013

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