The core value of partiality

 

The core value of partiality


Core values

Five core values ​​apply to lawyers, namely: independence, partiality, expertise, integrity and confidentiality. Together, these core values ​​form the professional standard for lawyers and thus form the basis for the way in which a lawyer behaves and carries out his work.

Earlier I discussed what core values ​​are and the core value of independence and in this blog I discuss the core value of partiality.

Core Value Partisanship

The core value of partiality is stated in Article 10a of the Lawyers Act :

“In the interest of proper administration of justice, the lawyer is responsible for the legal protection of his client. To this end, in the exercise of his profession, the lawyer is:

[…]

b) partial to the defense of his client's legitimate interests;”

and in rule 2 paragraph 2 Code of Conduct 2018:

“The interest of the client, not any other interest, determines the way in which the lawyer handles his cases.”

The starting point for a lawyer's actions is therefore the interest of his client.

A lawyer has great freedom to represent the interests of his client in a way he sees fit. This freedom is not unlimited, because a lawyer must also take into account the interests of the opposing party and third parties.

Limits to Partisanship

The true case included below is a clear example of a lawyer who goes overboard or goes too far in his partiality.

Roof terrace

The case

A lawyer represented a woman who had a dispute with a neighbor about the construction of a roof terrace by the neighbor. This was a long-running dispute and the parties argued about the way in which the roof terrace should be designed (whether or not glass over the roof dome). The neighbor announced through his lawyer that he would build the roof terrace on Friday 26 March. The lawyer was sitting on the neighbor's roof at 7:00 am on that Friday morning in leather motorcycle clothing, reading a file in one of the two garden chairs he had put down. The lawyer refused to leave the neighbor's roof. When the terrace layers arrived, the lawyer was again asked to leave the neighbor's roof. The lawyer did not respond to this. Thereafter, skirmishes ensued and the neighbor called the police.After the police arrived on the scene and after the neighbor had promised not to put a glass plate over the roof dome that day, the lawyer left.

The judgement

The Court of Discipline rightly believes that the lawyer had gone too far by hindering the neighbor to build the roof terrace and by seeking direct confrontation with the neighbor, while the neighbor was assisted by a lawyer. Instead of seeking confrontation, the lawyer should have turned to the neighbor's lawyer. [1]

The lawyer's conduct is also not as befits a proper lawyer vis-à-vis his opposing party. The lawyer plays an essential role in the administration of justice. Admittedly, a lawyer must be guided primarily by the interests of his client, but a certain distance is also expected from the lawyer. With his actions, the lawyer has lost sight of any distance and thus damaged confidence in the legal profession and in his own professional practice, according to the Court of Discipline. [2]

The lawyer showed no insight "in the reprehensible of his actions" and therefore he is reprimanded. [3] This is a more severe punishment than the warning imposed on him by the Council of Discipline.

Not unnecessarily offensive

The freedom of the lawyer is also limited because he is not allowed to express himself unnecessarily offensive to the other party. I wrote about this in the blog Rules of conduct for lawyers: 'not unnecessarily hurtful' .

[1] Court of Discipline February 17, 2012, ECLI:NL:TAHVD:2012:YA3225 , ground 5.8.

[2] Court of Discipline February 17, 2012, ECLI:NL:TAHVD:2012:YA3225 , ground 5.11.

[3] Court of Discipline February 17, 2012, ECLI:NL:TAHVD:2012:YA3225 , ground 5.12.

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