Accounting to the client for a lawyer's fees
A lawyer must be able to show the client what was done, why, and what it cost. A fixed fee makes a record of hours unnecessary, but the work must still be accounted for. Any complaint or claim about an invoice raises five questions for the court. They are dealt with below in that order, drawing on decisions of the Disciplinary Appeals Tribunal and the Dutch courts of appeal.
A fixed fee of €12,000 without time records
In 2016 a client signed an agreement with his lawyer for a fixed fee of €12,000 for proceedings against the Immigration and Naturalisation Service (IND). Fees for hours not worked would not be refunded, and no hours would be recorded. After almost two months the client's wife asked the lawyer to stop and to pay the money back. Another lawyer took over the case under a legal aid certificate (toevoeging). The first lawyer refunded nothing.
The Disciplinary Appeals Tribunal found for the client in January 2020. According to the agreement itself, the fixed fee was based on an hourly rate of €275, and so on just over 36 hours of work. The work consisted of an intake meeting, a three-page notice of appeal with a one-page supplement, and some correspondence with the court. That could not have taken 36 hours, "not even approximately". The lawyer spoke of "more than 18 hours" and "a lot of time", but without time records he could not substantiate it. That was his responsibility, and the clause saying no hours would be recorded did not help him. He was reprimanded, partly because he had not properly informed the client that legal aid might be available.
That is the heart of every fee dispute: even a fixed fee must be reasonably proportionate to work the lawyer can point to. A court dealing with such a dispute answers five questions. Which court decides what? What did the lawyer have to account for? What difference does a fixed fee make? Did he do it in writing and on time? And what follows if he did not?
Disciplinary tribunal or civil court: who decides what
The disciplinary tribunal assesses the lawyer's conduct and can impose a disciplinary measure (Section 46 of the Dutch Advocates Act, Advocatenwet). It can find that a lawyer billed excessively, as with the €12,000, but it does not determine the amount owed.
That is for the civil court, as is any claim for loss caused by a lawyer's professional error, or for a disputes body that gives binding advice, such as the Disputes Committee for the Legal Profession (Geschillencommissie Advocatuur). A disciplinary complaint about the amount of an invoice can therefore be declared inadmissible if that other route is available (Section 46g(3)(b) of the Advocates Act). Since 2015 fee disputes with lawyers have been decided by the civil courts, which apply the same standard of a reasonable fee that the rules of conduct set, as The Hague Court of Appeal noted in September 2019.
In short: conduct belongs with the disciplinary tribunal, money with the civil court. Missing or late breakdowns and a fee agreement that was never recorded are disciplinary failings. Whether a fixed fee was agreed is for the civil court to decide. The Hague Disciplinary Tribunal expressly left that question to it in 2022. How the disciplinary tribunal assesses the quality of the work itself is covered in the discussion of the disciplinary complaint about the quality of a lawyer's work.
What a lawyer must account for: work, choices, time, money
Section 7:403(2) of the Dutch Civil Code (DCC) requires every service provider to account for the way in which the engagement was carried out, and to render an account of any money spent or received on the client's behalf. Advocate General Hartlief summed this up in 2016: the client must be able to understand what was done, which choices were made and why, supported by documents on request where possible.
For lawyers these duties are set out in the Rules of Conduct for the Dutch Bar. Rule 16(3) requires a scrupulous account in financial matters. Under Rule 17(4) the client must be able to see from the invoice what is being paid for fees, disbursements and VAT, and which advances have been set off. In principle, invoices are to be rendered periodically and "properly itemised, stating the rate and time spent or another agreed basis". Most of the decisions below still concern the 1992 rules, but those set the same core requirements: care in financial matters and a reasonable fee.
The 's-Hertogenbosch Court of Appeal showed in July 2021 what a good breakdown looks like: time records that state, for each item of work, the date, the time spent, the lawyer who did it and the rate. If the client raises no reasoned objection to them, the hours are taken to have been worked.
A lawyer can rarely refuse a request for such a breakdown. The Disciplinary Appeals Tribunal held in 2015 that even a lawyer working under a legal aid certificate and paid by the Legal Aid Board may refuse the client a breakdown of hours "only exceptionally". That client was looking for a new lawyer and needed to know how many hours of the legal aid certificate had been used up. That he only asked eight months after the engagement ended made no difference.
If an insurer pays, the client is still entitled to see the figures. A lawyer working at the expense of a legal expenses insurer sends the client copies of the invoices, so that the client is not caught out when the cover runs out before the case is finished (Disciplinary Appeals Tribunal, April 2013).
Fixed fee: no hours, but an account of the work
Rule 17(4) itself leaves room for a fixed fee: the invoice states rate and time, "or another agreed basis". With a genuine fixed fee the lawyer therefore need not report hours. The Amsterdam Disciplinary Tribunal held in 2014 that a lawyer who had agreed to handle an entire criminal case for €45,000 could not be faulted for not accounting for his hours. The 's-Hertogenbosch Court of Appeal took the same line in 2017 for an independent contractor on a fixed fee of €7,500 a month: absent any indication to the contrary, such a fee does not depend on the number of hours worked.
That latitude has three limits. The first has already come up: a fixed fee must be reasonably proportionate to the work. If the fee is itself built on an hourly rate, as with the €12,000 in the immigration case, it is measured against the hours it implies. In that case a clause saying that no hours will be recorded does not help the lawyer.
The second limit follows from the statute itself. Section 7:403(2) DCC requires an account of the work and draws no distinction according to how the fee is structured. The same Hague tribunal held in 2022 that a fixed fee "does not detract from the duty to give a clear picture of the work performed". The case concerned a disputed arrangement of thirty hours a week at €350 an hour, invoiced only after the engagement had ended. The Disciplinary Appeals Tribunal upheld that decision in May 2024.
The civil courts took the same approach to a sales consultant who first worked by the hour and then for a fixed €20,000 over 26 weeks. He had committed to specific activities, a set number of hours a week and written reporting. When his client asserted that he had worked only 66 hours, he could not show what he had done instead. The 's-Hertogenbosch Court of Appeal took those 66 hours as established in 2020, without distinguishing between the hourly period and the fixed-fee period. He had to repay €72,411.43.
The third limit: if the engagement ends before the work is finished, the hours become relevant again. In the Amsterdam criminal case the client withdrew the instructions, and nothing had been agreed for that eventuality. The lawyer then billed at €500 an hour. That was not open to him, because without an agreed rate his firm charged a standard rate of €265. What a lawyer must tell a client about the fee before the engagement is a separate question, discussed under the lawyer's fee clause.
The account must be in writing and on time
What was only discussed orally does the lawyer little good. In the Hague case that ended with the lawyer being struck off, the lawyer said that he went through the work and the hours with his client every week. The Disciplinary Appeals Tribunal accepted that the client may have had some idea of the work, but those conversations did not release the lawyer from his duty to itemise the invoices. Nor did the client's preference to be kept informed orally change the duty to put agreements and information in writing. The sales consultant likewise pointed to "frequent oral" discussions, without concrete facts, and that carried just as little weight with the civil court.
Timing matters too. Breakdowns should be provided periodically, as Rule 17(4) requires. In the striking-off case monthly invoicing had been agreed, but the lawyer drew up nine months' worth of invoices only after the engagement had ended. That was "all the more serious given the enormous amount of time" they recorded, the tribunal held. In the legal aid case the breakdown came only after the Dean intervened, more than two years after the request. A breakdown that first appears in the complaint proceedings is too late.
What follows: disciplinary measures, reductions or a reasonable fee
In disciplinary law the measure depends on the seriousness of the failing and on what else went wrong. The late breakdown in the legal aid case led to the complaint being upheld without any measure being imposed. The fixed fee of €12,000, together with the deficient information about legal aid, earned a reprimand. The Hague lawyer was struck off the roll, but there an attempt to have a pledge created without consulting the Dean, a conflict of interest and earlier measures also played a part.
Before the civil court the question is who must substantiate and prove what. If the lawyer claims payment, he must substantiate the claim and, if it is disputed, prove it. An engagement letter with a record of hours may be enough. Then, according to the Amsterdam Court of Appeal, "the ball" is in the client's court, and the client must explain specifically why the time spent was excessive. If the client disputes the hours with reasons, merely referring to time records is not enough. The Hague Court of Appeal upheld in 2015 the dismissal of a claim by a firm that had drafted near-identical pleadings for two clients, had mentioned halving the costs as a possible benefit, and did not explain the hours spent.
If the client wants to recover money already paid, the client must first substantiate why too much was paid. Advocate General Wissink considered in 2020, in a case about an accounting services firm, that Section 7:403(2) DCC does not impose a general duty to substantiate invoices after they have been paid. He did not rule out that an explanation might be required, and the Supreme Court left the outcome standing. Paying without protest can be read as acceptance, as in the monthly fixed-fee case. Leaving invoices unpaid without protest does not amount to a waiver: in the Hague case of 2015 the client could still challenge the amount later.
If the lawyer cannot prove how much work he did, he is not automatically left with nothing. The Arnhem-Leeuwarden Court of Appeal set a reasonable fee by estimation in 2022 (Section 7:405(2) DCC) for a lawyer who had set off €38,007.26 against money he had collected for his client. He had earlier estimated the costs at €10,000 to €12,000. The court arrived at €23,000, and €15,007.26 had to be repaid.
What does this mean for clients and lawyers?
A client who does not understand an invoice should ask in writing for a breakdown as early as possible. If no useful answer follows, the firm's complaints procedure, a disputes body and the civil court are available for the amount, and a disciplinary complaint to the Dean for the conduct. With a fixed fee, the question is what work it pays for and whether that work has been finished. A client whose fees are paid by an insurer should ask for copies of the invoices.
For the lawyer the lesson is mainly administrative. A fixed fee should be put in writing, including what happens if the engagement stops halfway. Even with a fixed fee it pays to keep track of what has been done, because its reasonableness may be challenged later. Periodic invoicing, copies for the insured client and a prompt answer to a request for a breakdown prevent exactly the complaints that succeeded in these cases.
A breakdown does not guarantee payment: even a neatly itemised invoice was reduced where work was unnecessary or the client had not been warned. But a lawyer who could not show the work came off worse in every one of these cases.
Frequently asked questions
Must a lawyer warn the client if costs will exceed the estimate?
Yes. As soon as the lawyer foresees that the invoice will be considerably higher than the estimate given, the client must be told (Rule 17(3) of the Rules of Conduct for the Dutch Bar). Failing to do so can cost the lawyer money. The 's-Hertogenbosch Court of Appeal in 2021 rejected invoices for a period in which that warning was missing.
Can a court order a lawyer to account for the work and the money?
Yes, the client can claim that, if necessary backed by a penalty payment. In the Arnhem-Leeuwarden case of 2022 the lawyer had been ordered to do so and the court found his account incomplete. Mind the time limit, though: penalty payments that have fallen due become time-barred after six months (Section 611g of the Dutch Code of Civil Procedure). That is where collecting the maximum of €20,000 foundered in that case.
May a lawyer charge for the time spent on the fee dispute itself?
Not as part of the engagement. The Hague Court of Appeal in 2019 excluded hours spent on the dispute about the engagement and the unpaid invoices. Such costs can at most be claimed as extrajudicial collection costs under Section 6:96 DCC, a different legal basis with its own test of reasonableness.
Cited case law
Supreme Court: ECLI:NL:HR:2020:1290 (17 July 2020; appeal in cassation dismissed under Section 81(1) of the Judiciary Organisation Act, without reasons, in line with the opinion of Advocate General Wissink).
Opinions of the Advocate General: ECLI:NL:PHR:2020:270 (Advocate General Wissink, 13 March 2020, paras 2.19-2.20; no general duty to substantiate invoices already paid, although an explanation is not ruled out); ECLI:NL:PHR:2016:1477 (Advocate General Hartlief, 21 October 2016, paras 4.6 and 4.9; the account covers the work, the choices and the reasons, with supporting documents on request).
Disciplinary Appeals Tribunal: ECLI:NL:TAHVD:2024:148 (31 May 2024, paras 5.15, 5.17 and 5.19; oral discussions and knowledge of the rate do not release the lawyer from itemising; striking off by the tribunal upheld); ECLI:NL:TAHVD:2020:19 (10 January 2020, paras 4.7-4.9 and 4.19; fixed fee without time records, the lawyer must be able to show it is reasonable; reprimand); ECLI:NL:TAHVD:2015:213 (19 June 2015, paras 5.2-5.3; a breakdown of hours may be refused only exceptionally, even under legal aid); ECLI:NL:TAHVD:2013:64 (8 April 2013, para. 5.1; copies of invoices to the client with legal expenses insurance).
Disciplinary Tribunals: ECLI:NL:TADRSGR:2022:87 (The Hague, 13 June 2022, paras 5.20 and 5.27; a fixed fee also requires a clear account of the work performed); ECLI:NL:TADRAMS:2014:60 (Amsterdam, 12 March 2014, paras 5.7 and 5.10-5.11; a fixed fee requires no account of hours, and after early withdrawal no higher hourly rate than the standard rate).
Courts of appeal: ECLI:NL:GHAMS:2023:1315 (Amsterdam, 6 June 2023, paras 3.5 and 3.8; an engagement letter with a record of hours puts the ball in the client's court); ECLI:NL:GHARL:2022:4020 (Arnhem-Leeuwarden, 17 May 2022, paras 3.16-3.18 and 3.35-3.37; reasonable fee of €23,000 instead of €38,007.26, incomplete account of money collected); ECLI:NL:GHSHE:2021:2053 ('s-Hertogenbosch, 6 July 2021, paras 6.23, 6.25 and 6.27; the lawyer bears the burden of proof, itemised hours followed, a period without warning rejected); ECLI:NL:GHSHE:2020:592 ('s-Hertogenbosch, 18 February 2020, paras 3.3.3 and 3.7.3-3.7.5; a sales consultant first on an hourly rate and then on a fixed fee, with committed hours, must support his denial with what he should have accounted for); ECLI:NL:GHDHA:2019:2392 (The Hague, 17 September 2019, paras 21, 30 and 32; the rule of conduct as the civil standard, unnecessary work and time spent on the fee dispute fall outside the invoice); ECLI:NL:GHSHE:2017:4879 ('s-Hertogenbosch, 14 November 2017, paras 6.5.4-6.5.5; a monthly fixed fee does not, absent indications to the contrary, depend on hours worked); ECLI:NL:GHDHA:2015:536 (The Hague, 24 March 2015, paras 2.6-2.10; merely referring to time records challenged with reasons is not enough, and keeping invoices without protest is no waiver).