Dutch criminal lawyers have frequently violated their own disciplinary rules regarding the acceptance of cash. Cash payment was widely accepted, with no exceptional circumstances required. In addition, in a large number of cases lawyers failed to discuss cash payments above 5,000 euros with the local dean, while they should have been.
As a result, there is a risk that lawyers are guilty of debt money laundering or debt recovery. This is apparent from an investigation by the local deans, who supervise the legal profession, among 45 criminal law offices throughout the Netherlands, the conclusions of which have been shared with NRCand will be announced this Monday.
The study, conducted by the Financial Supervision Advocacy unit on behalf of the deans, looked at the financial administration from 2018 to 2020 of 45 criminal law firms. The disciplinary rules were violated en masse in 2018 and 2019, in particular, in 2020 the number of cash payments fell sharply, according to the deans, partly due to the announcement of the investigation and the discussion that started within the profession: it started to get around that the researchers for could stand the door.
“It is serious and not good that the rules have not been followed to this extent,” says the Amsterdam dean Evert-Jan Henrichs, on behalf of the deanberaad, the consultative body of all local deans. “We have had to conclude that a culture has developed in which insufficient attention has been paid to the rules surrounding cash payments. And as a supervisory authority for the legal profession, we should perhaps have acted against this sooner.”
Often other reasons given
Criminal defense attorneys may only accept cash if clients’ bank accounts have been seized or they no longer have a bank account. But, the survey found, lawyers often gave completely different reasons for accepting cash payments. That a client’s relatives held a fundraiser to pay the lawyer, for example. Or that a lawyer states that the client works in an environment where cash is the norm, such as the car trade or the catering industry.
“Those are not arguments for accepting cash,” Henrichs says. “The rules are crystal clear in that regard. But lawyers have lost sight of the rules, they have interpreted them too liberally, as if cash payments under 5,000 euros were always allowed.” It is not disclosed exactly how many law firms have gone wrong, the investigation is not published due to the obligation of confidentiality, but according to the blankets it concerns “a generous majority.”
According to Dean Henrichs, there is a risk that a large part of the criminal lawyers investigated have been guilty of debt money laundering or debt recovery. However, says Henrichs, the Public Prosecution Service has a reserved investigation and prosecution policy for lawyers on this point.
And, while violating the rules is also criminally culpable, there will be no disciplinary sanctions for the majority of lawyers who erred in the investigation, Henrichs says. “This investigation was thematic and not a ‘criminal investigation’. Precisely because the rules were violated in such a broad sense, but the lawyers have also repented in a broad sense. I also notice this in my contacts with lawyers. That is why we have decided that we will not take those cases to the disciplinary court.” However, in a few cases the blankets will do “further investigation.” Henrichs: “The outcome of this research and the attention paid to the subject can be seen as a warning. Just like a cop doesn’t always have to fine someone who doesn’t have a light on their bike.”
However, the blankets will monitor strict compliance with the rules regarding cash payments. For example, through existing supervisory instruments such as office visits and investigations based on signals received by local deans.
Annual questionnaire
A new feature this year is that the annual questionnaire that lawyers have to fill in asks how much cash was accepted that year. “As a result, we expect to be able to keep a finger on the pulse much better. We can see in which cases targeted research needs to be done. And if it turns out that lawyers have not filled in that list truthfully, we will be merciless. Then you hang.”
The findings are also reason for the deans to insist on changes to the rules. They want the Dutch Bar Association, the internal regulator, to significantly reduce the maximum cash amount to be received, for example to a maximum of 1,000 euros. In addition, it could be laid down that lawyers must consult the dean in almost all cases that they receive cash.
Also read: Lawyer is no longer allowed to wear a double hat: disciplinary judge restricts lucrative investigations
A version of this article also appeared in the newspaper of August 1, 2022
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