The Dutch Bar Association (NovA) warns its members of risks in fraud investigations by Dutch lawyers
Joris Polman (www.fd.nl)
5/21/2021
Dutch lawyers regularly come under attack after they have performed fraud investigations commissioned by companies. An additional guideline of the rules of conduct should help these lawyers 'to adjust their compass'. Critics, however, are hoping for the end fraud investigations by lawyers. The Dutch Bar Association warns its lawyers again for integrity risks in fraud investigations. Critics of 'self-investigation' are now hoping for 'a sledgehammer blow' to the lucrative fraud investigation practice of law firms. Surprisingly, the Dutch Public Prosecutor's Office is rolling out the red carpet ever further for the lawyer-fraud investigator.
For the second time in a short time, the Dutch Bar Association is warning its members about integrity risks in fraud and corruption investigations commissioned by companies. The professional association takes the persistent criticism of judges and members of parliament to heart and published an extra explanation of the rules of conduct on 20 May 2021. This should help lawyers 'to adjust their compasses', says Dutch dean Frans Knüppe.
Fraud and corruption investigations commissioned by companies are a lucrative market for large law firms. They have the wind in their sails because the pressurised Public Prosecutor's Office uses lawyer's research under certain conditions to wrap up cases more quickly, and sometimes even rewards them with punitive damages. But judges warn that deception is lurking. After all, lawyers only serve the interests of their clients.
In a 'clarification of the rules for fact-finding by lawyers', the Dutch Bar Association cites several critical rulings by judges. The Dutch Bar Association mentions among others a ruling on a fraud investigation that Dutch entrepreneur Gerard Sanderink had carried out in one of his companies. The lawyer involved did not only carry out the investigation, but also assisted the entrepreneur in other litigation, as a result of which 'the appearance of a conflict of interests' was created.
Another statement quoted by the NOvA concerns 'an external independent investigation' that SBM Offshore commissioned from SBM into a bribery affair. But when the lawyer involved was questioned about his findings, he suddenly invoked his right to remain silent based on his lawyer-client priviledge. Conducting research can therefore be at odds with the professional secrecy of a lawyer, warns the professional association.
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