After criticism, the bar association advocates more independent supervision, with an ‘outside view’

In recent months, people have listened carefully, says Robert Crince le Roy, chairman of the board of the Dutch Bar Association (NOvA). Listened to critical notes and questions from the House of Representatives and society. Listened to their own professional group, where Crince le Roy and his fellow board members were told during an extensive ‘tour along the fields’ what lawyers think the reform of supervision should look like.

On this basis, the NOvA will present a striking piece of advice to Minister for Legal Protection Franc Weerwind (D66) on Tuesday. In it, the Bar Association – which is regarded as an influential discussion partner – advises the Minister to tighten up its plans for the reform of the supervision of lawyers, so that the supervision in certain areas becomes more independent. For example, the board of the new national regulator should soon also include non-lawyers. “Our advice indicates that we are open to what is going on in society,” says Crince le Roy.

He emphasizes that supervision is “important”. “The NOvA has the task of striving for high-quality professional practice so that litigants receive high-quality legal assistance. Supervision of the legal profession ensures that this legal task can be fulfilled.”

One national supervisor

Weerwind presented its plans in September last year, which were developed in consultation with the NOvA, for reform of the supervision of the legal profession. The biggest system change is that instead of eleven regional supervisors – so-called deans – there will soon be one national supervisor who will be responsible for supervising the country’s more than eighteen thousand lawyers. Such a supervisor would be better equipped to supervise the Money Laundering and Terrorist Financing Prevention Act (Wwft) and to prevent scandals such as the fraud at the office of State Attorney Pels Rijcken. the minister had in mind came criticism. It mainly focused on the supposed lack of independence. According to Weerwind’s plans, the regulator will become part of the NOvA, which will also nominate the three board members, all lawyers. Criticism came, among others, from Jeroen Kremers, who was closely involved in the reform of the supervision of the financial sector and was a member of the supervisory board of the legal profession until last year. He advocated organizing the supervision of lawyers completely separately from the bar association in an independent administrative body, following the example of the Netherlands Authority for the Financial Markets (AFM).

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In the advice to Weerwind on Tuesday, the Bar Association proposes both adjustments to Weerwind’s plans and further details. For example, the board of the national regulator should not consist of three lawyers, as is currently the plan, but should also include one or two persons from outside the legal profession – with a duty of confidentiality. It is not the NOvA that should nominate those board members, but, for example, the ‘Outside View’: an external body announced by Weerwind that examines the functioning of the lawyers’ supervision.

The NOvA board believes that from a legal point of view, the national regulator should be part of the lawyers’ association. But in order to allay the fear of the House of Representatives that the supervisor will be housed in the same building in The Hague as the Bar Association, the NOvA calls it desirable that supervision should take place from another location. The right to conduct its own personnel policy must also be established. “We must ensure that influence can be exerted on the supervisor, as a result of which it is no longer able to exercise its duties and powers independently,” says Crince le Roy.

Lawyers’ supervision can be even more independent: completely outside the legal order via an independent administrative body, following the model of the AFM. Why don’t you see that?

“We do not think that this is the appropriate organizational model for supervising the legal profession, and that has to do with the special position of the legal profession in the constitutional state. A client must be able to speak with a lawyer in complete confidence and that lawyer must be able to act furiously against the government. This is in the interest of the litigant, because if there is any form of state supervision, they cannot rely on information exchanged between them to remain confidential and you undermine the fundamental principle of free movement between a lawyer and client must be able to be. That is why we believe that supervision should be organized within the professional group, but as independently as possible.”

In Germany and England they don’t think differently about that, do they? There, the legal profession also attaches great importance to independence from the state, but supervision is outside the legal order with all kinds of safeguards.

“That is comparing apples with pears, they have completely different legal systems there. We believe that requirements should indeed be set for the independence of the supervision of the legal profession, which is why we also make various proposals in our advice to safeguard that independence – under the umbrella of the NOvA. Supervision outside the NOvA by definition leads to influence by the government, whether large or small. In view of the special position of the legal profession, we do not see that as a matter of principle.”

Your advice states that lawyers are concerned about the cost of supervision. How big should the regulator be as far as the NOvA is concerned?

“The new supervisor will soon draw up its own budget based on the priorities set by the board of that supervisor. The supervision must be such that it can be exercised effectively, but it must be proportionate, because it must be possible to pay for it by the professional group. Lawyers usually pass these costs on to their clients, but this is not possible in the social legal profession, for example. That is why we believe that we should develop a distribution in which the strongest shoulders carry the heaviest burden. It is precisely this vulnerable social legal profession that should not become the victim of the supervision budget.”

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