RULES OF CONDUCT FOR ATTORNEYS
Correspondence between attorneys may not be submitted in court
The Code of Conduct for Attorneys (Lawyers) in Curacao, as well as those in Aruba, St. Maarten and the BES-islands, contain some specific rules regarding correspondence between attorneys.
Rule 18 of the Code of Conduct
The content of letters and other communications from one attorney at law to another may not be invoked in court, according to Rule 18 of the Code of Conduct for Attorneys at Law in Curacao. Submission of correspondence between attorneys (or mentioning the contents thereof) is only permitted if the client’s interest so requires, but not until after consultation has been held with the other party’s attorney and, if such consultation does not lead to a solution, the Dean’s advice has been obtained.
To promote the proper conduct of proceedings, the legal profession has accepted as a general principle that correspondence between attorneys may not be submitted in court without the consent of the other attorney. The reason for this is that it is important for the litigating parties that it is possible for attorneys to consult on a case without the content of this being known to the court to which the dispute has been submitted. If this were otherwise, consultation between attorneys would be seriously impeded.
The role of the Dean is limited to giving advice; the Dean is not authorized to give permission for bringing correspondence between attorneys into legal proceedings. The Dean’s advice, referred to in Rule 18 of the Code of Conduct, does indeed provide a guideline for the attorney concerned, but does not replace the attorney’s own responsibility. If he decides that it is in the client’s interest to present – or literally quote – in procedural documents or at the hearing – the relevant passages from – correspondence between attorneys, his decision can be fully tested in disciplinary terms.
However, Rule 18 of the Code of Conduct cannot, in general terms, prevent facts – that are of essential importance for the assessment of the dispute and that have been stated in the correspondence between attorneys (or in some cases: that have not been stated correctly) – from being brought to the attention of the court solely on the ground that these are only recorded in correspondence between attorneys.
Rule 19 of the Code of Conduct
The court or authority to whose judgment the case is subject may not be notified of any settlement negotiations between the attorneys without the consent of the other party’s attorney. However, the content of a settlement proposal made by an attorney at law on behalf of his client may be communicated by him without such permission if the attorney has expressly reserved the right to do so when making the proposal.
This rule is strict: the court may not be informed of the content of settlement negotiations without the consent of the other party, except for the exception mentioned above. Nor can the Dean give any substitute consent.
Karel Frielink
(Attorney)
(29 January 2019)
.
