Clarifications on the Evidentiary Prohibition in the Dispute Act Section 22-5

General Overview of the Evidentiary Prohibition in the Dispute Act Section 22-5

The Dispute Act Section 22-5 provides that the court may not receive evidence from lawyers concerning matters that have been “entrusted to them in their professional capacity”. This is a very practical and important rule for both lawyers and clients. In autumn 2025, the Supreme Court provided new clarifications on the scope of this rule in cases where the relevant information has been disclosed to third parties.

The starting point under the Dispute Act is that everyone has a duty to make available documents that may be of significance for the decision to be rendered, cf. the Dispute Act Sections 26-5, first paragraph, and 21-7, first paragraph. From this starting point, however, the Dispute Act establishes several exceptions.

The relationship of trust between lawyers and clients is central to our legal system. It is a fundamental safeguard of legal certainty that natural and legal persons may seek legal assistance in full confidentiality. The legislature has therefore determined that the court may not receive information entrusted to lawyers as evidence, unless the party entitled to confidentiality consents, cf. Dispute Act Section 22-5.

The wording of the evidentiary prohibition refers to information that has been “entrusted” to the lawyer. In case law, it has been established that this does not only encompass information that the client has “entrusted” to the lawyer in the narrow sense. It also encompasses everything that the lawyer, in the capacity of their profession and as part of a client relationship, obtains or gains access to on behalf of the client. This may include, for example:

• Information about the existence of a client relationship

• The client’s identity

• Timesheets

• Assessments made by the lawyer of matters entrusted to him or her

• The lawyer’s advice to the client

On the other hand, information that is publicly known or available falls outside the scope of the evidentiary prohibition.

The wording of the evidentiary prohibition further applies only to the courts receipt of evidence “from lawyers.” In case law it has however been clarified that the evidentiary prohibition covers all documents considered to be “entrusted” (Norwegian: “betroelser”), regardless of who is in possession of the document. This means, for example, that if information from a client is initially considered to have been “entrusted” to a lawyer, the information cannot be demanded to be disclosed.

The Scope of the Evidentiary Prohibition Where Entrusted Information Is Also Disclosed to a Third Party

A particular question is what scope the evidentiary prohibition has where the relevant information has not only been entrusted to the lawyer, but has also been communicated to third parties. In October last year, the Supreme Court addressed this question in the decision HR-2025-1945-A, which concerned a request for access to evidence in the so-called Solstad case.

The Supreme Court’s decision is based on the principle that disclosure to third parties does not automatically mean that the evidentiary prohibition ceases to apply. The Supreme Court stated that the decisive question is whether the party entitled to confidentiality has communicated the information “in a manner that must be equated with the person having relinquished the protection of confidentiality, and thereby also having waived the right to secrecy,” see paragraph 52 of the decision.

Furthermore, the Supreme Court stated that a specific assessment must be made as to whether, and if so to what extent, the client has relinquished the protection of confidentiality by communicating the information to the third party, see paragraph 60 of the decision.

Key factors in the assessment of whether the right to secrecy remains intact are:

• The manner in which the information was passed on

• The content of the information

• The purpose of sharing the information, including whether the exchange of information was necessary for the lawyer to carry out their engagement, see paragraph 61 of the decision

The fact that information has been communicated to persons in a close community of interest or cooperation with the client, for example in contract negotiations, may support the conclusion that the client has not waived the right to secrecy, see paragraph 60 of the decision.

Practical Handling of Disputes Regarding the Evidentiary Prohibition

Since a specific assessment must be made as to whether the evidentiary prohibition still applies even though the information has been communicated to third parties, disagreements and disputes regarding the disclosure of relevant evidence can readily arise. In such cases, questions will often also arise as to how the evidence dispute should be handled in practice by the court.

Under the Dispute Act Section 26-7, second paragraph, items subject to evidence exemption or evidentiary prohibition may only be required to be submitted for the court’s assessment if the law specifically authorises an order for the presentation of evidence despite the exemption or prohibition. For information covered by the Dispute Act Section 22-5, no such legislative authorisation exists.

If a request for access to evidence is opposed on the grounds that an evidentiary prohibition for lawyer-client privileged information applies under the Dispute Act Section 22-5, the starting point under the Dispute Act Section 26-7 is therefore that the evidence shall not be submitted to the court for assessment of whether an evidentiary prohibition or evidence exemption applies, cf. the specific commentary to Section 26-7 in the preparatory works to the Dispute Act. The court must instead determine whether an evidentiary prohibition or evidence exemption exists without having seen the document. In such an assessment, the “nature and purpose” of the evidence will be important, cf. Rt-1983-1438.

Although the court cannot require the evidence to be submitted for assessment of whether an evidentiary prohibition under the Dispute Act Section 22-5 applies, it may in some cases nevertheless be expedient to voluntarily submit the evidence for the court’s assessment.

We recently faced a similar situation in an ongoing litigation matter. The issue in our case was whether minutes from a meeting between a client, a lawyer, and a third party contained confidential communications and thus fell within the scope of the evidentiary prohibition. We argued that the meeting minutes were covered by the evidentiary prohibition, while the opposing party argued that the minutes were not covered. The opposing party clearly expressed that it had no confidence in our assessments of the evidentiary prohibition.

Although we could have refused to submit the evidence to the court, the practical solution to the evidence dispute was that the court was sent the relevant document by email, after which the document was reviewed and assessed by a judge other than the judge who was scheduled to hear the main case. The court then issued a ruling that the document was covered by the evidentiary prohibition.

The court’s assessment of the relevant evidence lent legitimacy to our position and reduced the opposing party’s distrust. The opposing party did not appeal the decision. Because a judge other than the judge scheduled to hear the main case decided the evidence dispute, no questions arose regarding the presiding judge’s ability to preside in the main case.

This is an example of how it may sometimes be expedient to submit the evidence for the court’s assessment even though there is no obligation to do so. Such submission should not, however, be made if it would be incompatible with the purpose underlying evidentiary prohibition or evidence exemption to submit the evidence to the court.