Dutch justice minister touts Clementi-style legal review

Dutch firms face penalties for lawyers’ behaviour; bar to check service quality – Piet Hein Donner, Minister of Justice for the Netherlands

Is one of Europe’s least regulated legal professions about to be subject to its very own version of the Clementi Review?
This will be the case if the Netherlands’ Minister of Justice Piet Hein Donner gets his way. During 2005 he hopes to push through parliament a surprisingly radical 11-point programme of reform of the Dutch legal profession. The liberal Netherlands may be about to have an image change.

As Dutch lawyers were hanging up their Christmas stockings, they were reminded of the minister’s scheme by post. The most controversial proposal – for law firms to be made liable for individual lawyers’ behaviour – is likely to have spoilt the taste of their turkeys.

Donner is concerned that lawyers can escape being disciplined for misconduct if their clients fail to make a complaint against them. However, the minister thinks it should be down to law firms to root out this misconduct and, where necessary, discipline the offending lawyer. He believes that not doing so should result in the firm as a whole facing sanction.

The letter states: “[The disciplinary system] at present only concerns an individual advocate and [does not involve] the board [of a firm]. The minister thinks it is necessary to analyse the functioning of a law firm and what system of supervision and disciplinary proceedings fit best.”

The radical move has been met with consternation.

Jeroen Brouwer, the president of the Netherlands Bar Association, said: “I don’t think [the proposal] is necessary. Law firms are just a collection of lawyers.” Disciplining wayward lawyers, he believes, is the responsibility of external bodies, not law firms.

Donner also wants a wholesale and radical inquiry into law firms’ operations.

“Themes like trial behaviour, the influence of the professional training and traineeship on the functioning of the legal profession and the role of the professional organisation require a study,” the minister outlined.

This study is likely to be handled by a committee whose members will also review all 11 proposals before they are sent to parliament for debate.

In another radical move, Donner has decided that “the quality of service provided by an advocate is difficult to check”. As a result, the minister, in a move that seems even more wide-reaching than Clementi’s proposals for the UK, has called for a “peer review” of the quality of Dutch lawyers.

The Dutch bar, which has been assigned the responsibility of carrying out this review (while at the same time having its own structures assessed) has condemned this as well.

“The only thing we do is contribute to the administration of justice. We’re not a trade union,” said Brouwer, who is likely to be a thorn in the government’s side throughout the passage of the reforms.

Not all of the proposals have been universally derided. Donner wants to reverse the rule that allows lawyers to have the right to choose whether legal privilege should be invoked. Instead, judges should be making these decisions, said Donner. Also, echoing Clementi, the minister has suggested that not to allow non-lawyers to act in certain cases could be anticompetitive and “implies unnecessary costs”.

In another key point, the minister questions whether lawyers who rarely if ever appear in court have the right to retain the title of court advocate and “continue to enjoy the various [associated] privileges”.

Some feel the proposals – which are radical by anyone’s standards – are not worth worrying about, or at least not at present. Allen & Overy’s global head of corporate in the Netherlands and Dutch senior partner Sietze Hepkema said: “I haven’t lost any sleep over the proposals.”

At present Dutch firms appear more fixated with aligning their management styles with those of US and UK firms than seriously considering any Clementi-style reforms. De Brauw Blackstone Westbroek’s appointment of its first chief operating officer (see page 5) was for exactly that reason. “We want to further professionalise the internal organisation of the firm. The UK and the US are ahead of the Netherlands in this case,” the firm’s managing partner Jaap de Keijzer told The Lawyer. Other Dutch firms are understood to be considering similar moves.

However, one senior partner said he listed the minister’s proposals among his key considerations of 2005.