Free choice of lawyer
Written by:
Hein Kernkamp
Legal aid insurance and the right of free choice of lawyer
Under European law (Directive 87/344 / EEC on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance), every policy of a legal expenses insurer must state that the insured person is free to choose a lawyer of his choice. The obligation to guarantee a free choice of lawyer is also included in Articles 4:65 and 4:67 of the Netherlands Financial Supervision Act.
In which cases is the insured entitled to a free choice of lawyer?
Two judgments of the European Court of 2013 (the Sneller / DAS case) and 2016 (the Massar / DAS case) have considerably extended the insured's right to a free choice of lawyer. In the Sneller / DAS case, the CJEU held that the preamble to
the Directive and Article 4 (1) were to be interpreted such that the interests of persons covered by legal expenses insurance must have the freedom to choose their own lawyer. In the Massar / DAS case it was decided that the right to free lawyer choice also applies to the dismissal procedure at the UWV.
Is there always a free choice of lawyer?
That depends on the policy. There are policies that stipulate that as soon as the insured is entitled to legal aid under the policy, the insured may call in a lawyer of his choice. The insurer therefore limits itself here to insuring the risk and the legal work is then done entirely by the chosen lawyer.
But many policies stipulate that an external lawyer of the insured's own choice may only be brought in when legal proceedings have to be started or when the insured person has been summoned.
With the third very important judgment of the European Court of Justice of 14 May 2020 (the Order of the Flemish Bars / Council of Ministers), which is very important in this context, a next step has been taken. In that case, the Court ruled that the concept of the free choice of lawyer applies to any stage that could lead to legal proceedings, even a preliminary stage. This means that the insured can, at a much earlier stage, claim his right to choose his own lawyer.
Get to know us
We notice that clients like having a case handled by a lawyer of their choice. Our lawyers are experienced in conducting proceedings and we are happy to help you. You can always call us to submit your case without obligation and to get to know us. We are ready for your interest, even if you are looking for a second opinion in case of a conflict with your legal expenses insurance. It is not without reason that our motto is: "Your problem, our concern." Contact us today.
More information?
Hein Kernkamp will gladly help you further.
