The Dutch Attorney’s Duty To Verify Her Client’s Dominion Of The Dutch Language

This disciplinary complaint was filed by a lady against her ex-husband’s Dutch attorney who dragged her in some divorce matters although she didn’t properly understand the Dutch language, leaving her with serious problems.

An e-mail of the attorney engaged by the lady after being confronted with these serious problems, summarizes her ex-husband’s Dutch attorney’s conduct (¶ 2.24).

“You made a divorce settlement agreement that includes incorrect information. [. . .] Moreover, you state in the agreement that my client relinquishes her ownership of the home to your client, while my client didn’t even know what she signed for. My client told me that you didn’t ask my client whether she properly understands the Dutch language and you made my client sign an agreement, without assistance of counsel and without an interpreter for her, whereby she relinquished all her rights. Further, you fail to mention in the agreement that my client has invested over EUR 69,000 in the home.”

Because of these problems the client had to file legal proceedings to rescind the divorce settlement agreement (¶ 2.25). Additionally, she filed a disciplinary complaint against the ex-husband’s attorney. As for the language problem, the formal complaint states (¶ 3.3 (b)) that the attorney caused the lady to sign a divorce settlement agreement without assistance of counsel, while there’s no evidence that the attorney verified whether the lady understood the Dutch language and no evidence that the attorney gave the lady a proper explanation of the content of the divorce settlement agreement.

The dean of the bar association joined the action (¶ 5.7) stating that the attorney had committed an ethical violation by making the lady sign a divorce settlement agreement without assistance of counsel, while there’s no evidence that the attorney verified whether the lady understood the Dutch language nor any evidence that the attorney gave the lady a proper explanation of the content of the divorce settlement agreement.

The Board of Ethics finds for the complainant and dean (¶ 5.8, (b)). When an attorney represents one of the parties in writing a divorce settlement agreement, the attorney must exercise diligence and take into account the consequences that such agreements may have on the counterparty’s interests. If either party is harmed, the attorney must inform the affected party thereof and explain how the agreement affects such party, the more so when, as here, it’s known that Dutch is not the lady’s mother tongue. The Board finds that there’s no evidence that in the instant case the attorney complied with her enhanced duty of care. What’s more, here, the first thing the attorney had to do was to check with the lady’s attorney whether she was still representing the lady before writing the lady directly to invite her to her office to sign the divorce settlement agreement. There’s no evidence the attorney did so. Nor is there any evidence that the attorney, before signing the divorce settlement agreement, consulted the lady to verify whether she properly understood the Dutch language. The attorney has stated that, as stated in one of her e-mails, her husband had told her that the lady speaks Dutch at an academic level and that attorney had so noticed. Nevertheless, that e-mail, which seems to be based on information her own client gave her, does not constitute adequate verification of the lady’s Dutch language proficiency. Further, there’s no evidence that the attorney waited for the lady’s reply to said e-mail. The Board emphasizes that the attorney should have adopted a critical posture as to the lady’s language proficiency, in part based on the impression of the language proficiency the lady gave the Board at the hearing. Because the attorney also failed to clarify how she verified whether the lady understood the Dutch language sufficiently as to understand the divorce settlement agreement —a legal document with far-reaching consequences for the lady— the Board finds for the dean on this language aspect of the complaint.

Because it finds for the complainant and dean on all counts, the Board proceeds to impose a sanction (¶ 6.1). The Board holds that the attorney has harmed the lady’s interests in an impermissible way. The attorney has violated the Dutch ethical norms by making the lady sign a divorce settlement agreement without consulting the lady’s (last) attorney or checking with her whether she was still being represented by that attorney. Further, there’s no evidence that the attorney verified, before signing the divorce settlement agreement whether the lady properly understood the Dutch language and whether she understood the text of the divorce settlement agreement.

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