Do you doubt whether your legal expenses provider can represent your interests independently? A specific conflict of interest can affect how your case is handled and your choice of legal assistance. Dissatisfaction with a piece of advice, however, is not in itself a conflict of interest. Describe which interests clash and why that affects your case.
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Written by Onur Arslan, attorney at Arslan Advocaten. Onur Arslan practised for many years as a corporate lawyer and insolvency trustee (curator) and has extensive experience in financial law disputes. Do you have questions about your own situation? Get in touch.
When do interests clash?
A problem can arise when parties with opposing interests are assisted by the same organisation. The relationship between the insurer, the claims handling company and other affiliated businesses can also raise questions. What matters is how things are actually organised and handled, not merely a shared trade name.
Ask who acts for which party, who has access to your data and what measures the organisation takes to ensure independent handling. You do not need to receive confidential information about the other party in order to ask for an explanation of how your own file is protected.
Free choice in the event of a conflict of interest
The European framework for legal expenses insurance expressly mentions conflicts of interest in connection with the right to choose a lawyer or other qualified legal adviser. See Directive 2009/138/EC, Article 201. The Dutch implementation and your policy must be applied to the specific situation.
Ask for a reasoned decision on external handling and the associated costs. A conflict of interest does not automatically mean unlimited reimbursement or free use of the full policy limit. It must be clear which case and which work fall within the instruction.
A difference in strategy is something else
Does your case handler consider litigation unwise, or does he advise a lower settlement than you would like? Then there may be a substantive difference of opinion. The disputes procedure (geschillenregeling) may be intended for that. A conflict of interest requires more than the fact that the insurer also wants to keep costs under control.
First ask the case handler to explain his substantive assessment. If the real problem is that another interest is interfering with the representation of your interests, support that with specific correspondence or decisions. The distinction determines which remedy you ask for: a substantive review, a different case handler or external assistance.
Confidentiality and transfer of the file
If another lawyer takes over the case, the complete relevant file and the deadlines must be handed over. Discuss which confidential information may no longer circulate internally and who will maintain contact with the insurer. A lawyer retains his own professional responsibility towards his client, even when an insurer pays the costs.
Also avoid a new conflict of roles. A lawyer who has already given a formal independent opinion under the disputes procedure may be restricted by the policy conditions from taking over the case later. Have the intended role agreed in advance.
If your request is refused
Ask for a written explanation of how the conflict and the safeguards offered were assessed. An internal complaint may be appropriate. Depending on the case, an external complaints route or the courts may then be explored. Meanwhile, keep track of the deadlines in the main case; a discussion about independence does not automatically suspend them.
Frequently asked questions
Is it always prohibited for both parties to have the same insurer?
The specific interests, organisation and safeguards must be assessed. A shared insurer does not in itself say anything about how the case is handled.
Is unfavourable advice proof of partiality?
No. Ask for the substantive reasons and assess whether there is a difference in strategy or a genuinely conflicting interest.
May I ask for a lawyer of my own choosing?
In the event of a specific conflict of interest, that may be an option. At the same time, ask for a decision on cover and costs.
What can Arslan do?
We can assess the conflict, the safeguards offered and the options for an independent lawyer to take over the case.
Read also about second opinions, refusal of the disputes procedure and complaints about legal expenses insurance.
Have it examined whether your legal expenses case is being handled with sufficient independence.
This page provides general information and is not legal advice about your own situation. No rights can be derived from its content.
