LITIGATION IS A SKILLED PROFESSION (part 8)
New legislation
Finally, note that rather simple examples have been taken here. However, many suits are complicated with regard to their subject matter. In this connection disputes about complicated take-over issues, disputes between investors and an investment fund, disputes with a contractor or architect about a building or disputes about intellectual property come to mind. All these types of dispute require from advocates much more knowledge of and experience with litigation. It is not that each advocate must be an expert in all those areas but he should at least have experts in his team.
Only a few aspects of the law of civil procedure of Curacao have been highlighted here. Those aspects are equally important for the law of Aruba, Bonaire, St. Maarten, St. Eustatius and Saba. And then the appeal procedures to the Appeal court and to the Supreme Court have not even been given attention. The conclusion must be that litigating is a profession and that experience of litigation is of the essence. Therefore when choosing an advocate it is important to ask about that knowledge and experience, as well as the knowledge and experience of his team.
The advocate is the expert par excellence when litigation is required. The Lawyers National Ordinance of 1959 (Advocatenlandsverordening 1959) is applicable in Curacao. It provides for instance how to become an advocate. This old Ordinance is going to be adjusted. In the meantime a draft of a new Lawyers National Ordinance has been prepared. This draft bill provides that only advocates can act as professional attorneys or counsels in civil cases, administrative cases and criminal cases. In certain cases the court can allow persons who are not advocates to act in that case as a litigation representative (gemachtigden). This admission only applies to the case in which this is allowed. People and companies who want to litigate themselves can also continue to do this under the new law. They are also allowed to obtain advice from non-advocates. The new law does not change this. If someone wants to offer legal assistance free of charge, this is also possible when the new law comes into force.
In practicing their profession the core values of independence, partisanship, expertise, integrity and confidentiality apply to advocates. Advocates are subject to rules of conduct and in the event of any complaints about the performance of an advocate, it is possible to apply to the disciplinary court. Certain requirements with regard to their (previous) education are also applicable to advocates. Moreover, the new law enables the Bar to guarantee the quality of its members by making continuous training mandatory. The present legislation does not offer the opportunity to send advocates back to school even after they have graduated.
The aim of the new law is to ban so-called professional litigation representatives (beroepsgemachtigden). These are persons performing professional activities equal to that of an advocate but who are not subject to any educational requirements and who are not subject to rules of conduct and disciplinary law either. They don’t have to take the oath or make their solemn affirmation. So there is no proper control of the manner in which they perform. Cases are also known of professional litigation representatives who were initially practicing as advocates, but who discontinued in that capacity particularly to escape application of the law of conduct and disciplinary law. This is a bad state of affairs.
Moreover, it has been laid down in the draft bill that acting managers (zaakwaarnemers) are subject to the disciplinary law on advocates. An acting manager is a person who makes a business of assisting people in lawsuits without being an advocate. The acting manager will only have this right if he is registered at the court office of the Court of First Instance of the island where he is domiciled. At the moment the rule is that in Curacao acting managers can only act in cases with a financial interest of not more than 10,000 guilders and in eviction cases. New acting managers are no longer admitted. For completeness sake it is noted that a bailiff can also act as a litigation representative in cases where a sum of money of not more than 10,000 guilders is involved.
The most important reasons for the new law are to improve quality and quality assurance. Advocates must satisfy high requirements and what they do (or omit) can be assessed by the disciplinary court. Litigation is a profession and those seeking justice should not become victims of bunglers.
Karel Frielink
Attorney (Lawyer) / Partner
(14 June 2013)
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