You can hold a lawyer liable if they did not act as a reasonably competent and reasonably acting lawyer would have done and you suffered damage as a result. Losing proceedings is not enough for that. With a missed time limit, for example, it must also be examined what a timely appeal could have achieved.
What can a lawyer’s professional error be?
Examples include letting a time limit for appeal expire, failing to interrupt the limitation period for a claim in time, failing to warn adequately about litigation risks, or settling without sufficient instructions. Incomplete investigation of relevant facts can also play a role. Always assess the instructions given and what was known at the time. A defensible litigation strategy that turns out badly in hindsight is not automatically an error.
Check who your contracting party is: the individual lawyer, a partnership or a law firm company. The fact that a lawyer’s name appears under the correspondence does not fully answer that question. The engagement letter, general terms and conditions and invoices help here.
Lawyer missed a time limit for appeal
Have it examined immediately whether the situation can still be remedied. Sometimes there is room for debate about when a time limit began or which legal remedy was available. Do not assume that a remedy is impossible, but do not assume either that a complaint puts the proceedings on hold. If necessary, instruct another lawyer to monitor any time limits that are still running.
For compensation, it is then examined how the original case ought to have been decided had action been taken in time. If the outcome cannot be established with sufficient certainty, the good and bad chances of success in the proceedings may be weighed. A missed time limit therefore does not mean that the lawyer automatically has to pay the entire amount claimed.
Lawyer lets your claim become time-barred
A new claim against the lawyer is something different from the original claim. Examine which acts interrupting the limitation period were performed, to whom messages were sent and whether they were received. If the original claim had no prospect of success on the merits or could not have been recovered, that affects the damage. The claim against the lawyer also has its own time limits.
Incorrect advice or too low a settlement
With advice on a settlement, it must be clear which risks, costs and alternatives were discussed. Regret in hindsight alone is not enough. Relevant questions are, for example, whether an important item of loss was known, whether an expert investigation was still needed and which reservations the agreement contained.
Have both the settlement agreement and the advice that preceded it assessed. Challenging the settlement against the original opposing party is a different question from the liability of the lawyer. A full and final discharge may limit what can be put right, but it does not automatically rule out an investigation into the services provided. For a personal injury file, you will find further explanation under errors by the personal injury claims handler.
Which evidence do you need?
- The engagement letter and the name of the contracting party.
- The complete litigation file, judgments and proof of service or receipt.
- Correspondence about deadlines, instructions, advice and settlements.
- Your own documents that were available at the time.
- A calculation of the damage and information on whether the original claim could have been recovered.
Complaint to the Dean of the Bar or compensation?
A complaint about professional conduct and a civil claim for damages serve different purposes. The Dean (deken) of the local Bar can investigate a complaint; a disciplinary ruling does not automatically decide all questions about damage and causation. Within the disciplinary law for lawyers there are limited possibilities regarding compensation, but they do not replace an assessment of the appropriate civil route.
Do not wait solely for the outcome of a complaint if a civil time limit is running. If the lawyer was engaged through your legal expenses insurance, establish separately who carried out the assignment and for which error that party can be held liable. Read also about professional errors in legal expenses insurance.
Frequently asked questions
Is a lost case proof of a professional error?
No. What is examined is whether the lawyer acted with due care and what could have happened without the alleged error.
Can I request my file?
Ask for the file and specify which procedural documents, advice and correspondence you need. Discuss any gaps and make sure that urgent time limits are monitored in the meantime.
Will the costs of my new lawyer be reimbursed?
That depends on liability and on the reasonableness of the costs. In proceedings, the full actual fee is usually not reimbursed.
Sources
Supreme Court 16 February 2007, ECLI:NL:HR:2007:AZ0419 on the assessment of the hypothetical proceedings; Advocatenwet (Dutch Lawyers Act), including article 48b.
Time limits, costs and your next step
Report the suspected error in good time and in concrete terms. A complaint and interrupting the limitation period are different acts. For claims for damages, a period of five years after actual awareness of the damage and of the liable person often applies, but special rules and other time limits may apply. Have the time limit for your own file checked.
Responsible lawyer: Onur Arslan. Contact us with a brief description and any urgent deadline. Discuss in advance the scope and costs of the investigation, possible expert costs and litigation risks. Recovery of all costs is not guaranteed.
See also the general professional liability guide for a step-by-step plan, a file checklist and an explanation of damage, causation and complaints procedures. Legal basis: Book 7 of the Civil Code (duty of care), Book 6 of the Civil Code (compensation and the duty to complain in time) and Book 3 of the Civil Code (limitation and interruption).
