Introduction
Lawyers, civil-law notaries and accountants practise their profession under one and the same civil-law standard, but its application differs from one practice to the next. For all three, a client, and sometimes a third party, may suffer loss from a professional error: a missed deadline, incorrect advice, a defective deed or an unjustified audit opinion. The question of when a lawyer, notary or accountant is liable for that error is not answered by the norm alone, but by causation and by the loss. Alongside civil liability, each of these professions also has its own disciplinary law, and the relationship between the two often determines the strategy.
The standard: a reasonably competent and reasonably acting practitioner
The liability of a professional is assessed against the standard of whether they acted as may be expected of a reasonably competent and reasonably acting practitioner. That standard flows from the duty of a diligent contractor (Article 7:401 of the Dutch Civil Code, DCC) and applies to a claim for breach of contract (Article 6:74 DCC) and, towards third parties, in tort (Article 6:162 DCC). The standard is the same for every profession, but is coloured by the nature of the engagement, the applicable professional and conduct rules and the circumstances of the case. The crux of proceedings therefore rarely lies in the norm itself, but in whether it was breached in the specific case and what loss followed.
The lawyer: professional error, causation and loss of a chance
For the lawyer, liability usually turns on missing a deadline, failing to bring a remedy, a wrong assessment of the prospects of success or defective advice. What is decisive is not whether the case was lost, but whether the lawyer acted as a reasonably competent and reasonably acting practitioner would have. The hardest element is often causation: what outcome would have been reached without the error?
For that situation the Supreme Court developed the doctrine of loss of a chance (kansschade). Where a lawyer had failed to bring an appeal or a claim in time, the breach is established, but it remains uncertain whether the remedy would have succeeded. The loss is then assessed by estimating the good and bad chances the client would have had in the proceedings that were missed. That line goes back to the Baijings judgment (Supreme Court 24 October 1997) and was summarised and refined in Supreme Court 21 December 2012, ECLI:NL:HR:2012:BX7491. That judgment clarifies that loss of a chance only arises once but-for causation (condicio sine qua non) between the error and the lost chance has been established, and only where there was a real, that is to say not very small, chance of success. Loss of a chance must be distinguished from proportionate liability, which the Supreme Court accepted in the Nefalit judgment (Supreme Court 31 March 2006) for cases of uncertain causation and which, under the Fortis judgment (Supreme Court 24 December 2010), must be applied with restraint. Both judgments are set out in the 2012 ruling above.
The civil-law notary: a heightened duty of care, also towards third parties
A heavier duty of care rests on the civil-law notary than on many other professionals. As a public official the notary is in principle obliged to perform the office (the ministerial duty under Article 21 of the Dutch Notaries Act, Wna), but that duty is bounded by the notary’s duty of care. In the Novitaris judgment the Supreme Court held that a duty of care rests on the notary that extends not only to the person who approaches them, but in certain circumstances also to third parties whose interests are, or may be, involved in the intended official act (Supreme Court 3 April 2015, ECLI:NL:HR:2015:831). Where the notary is aware of a legitimate interest of a third party that may form an obstacle, the notary must investigate it and, where necessary, warn or refuse the service.
Alongside this general duty of care, a specific duty to inform and warn applies (Article 43 of the Dutch Notaries Act): where a deed has adverse or risky consequences, the notary must warn the party concerned and satisfy themselves that the consequences are understood. In lower-court case law, breach of this duty leads to liability of the notarial firm, as where partnership conditions were amended to a partner’s detriment and the notary had failed to warn (District Court of Gelderland 18 December 2024, ECLI:NL:RBGEL:2024:9232). The scope of the duty depends on what the notary knew or ought to have known about the interests involved.
The accountant: statutory and non-statutory tasks
For the accountant, the distinction between statutory and non-statutory tasks is decisive. In the statutory audit of financial statements and the issuing of an audit opinion, a standard of care applies that also protects third parties entitled to rely on that opinion. In the Vie d’Or judgment the Supreme Court held that an external auditing accountant may act negligently towards third parties entitled to rely on an audit opinion, and set out viewpoints for assessing this (Supreme Court 13 October 2006, ECLI:NL:HR:2006:AW2080). In the same judgment the Supreme Court held that the reversal rule for causation (omkeringsregel) does not apply here, because the breached norm does not aim to prevent a specific danger. For non-statutory tasks, such as advice, the ordinary standard of the reasonably acting practitioner applies.
Liability towards third parties
In all three professions the question arises whether someone outside the contractual relationship can also hold the professional liable. The contractual counterparty proceeds by way of breach of contract; a third party is confined to tort (Article 6:162 DCC). Novitaris and Vie d’Or show that the care a notary or accountant must observe extends, in certain circumstances, also to third parties. Whether a third party can recover depends on whether the breached norm was intended to protect that party’s interest as well, and whether reliance on the opinion or the deed was justified.
Limitation of the claim
A claim for a professional error is subject to limitation. The short period of five years starts to run once the injured party is aware of the loss and of the liable person; alongside this a long-stop period of twenty years from the event applies (Article 3:310 DCC). With professional errors the moment of awareness often falls later than the error itself, for instance where incorrect advice only turns out to cause loss years later. Timely interruption of limitation is therefore a recurring point of attention, both for a party wishing to preserve a claim and for a party defending against a late claim.
Disciplinary law and civil liability: how do they relate?
For lawyers, notaries and accountants, a separate disciplinary law exists alongside civil liability. The disciplinary tribunal tests against the conduct and professional rules and may impose a measure, but awards no damages. A disciplinary ruling is moreover not decisive for civil liability. The civil court may attach significance to the disciplinary tribunal’s ruling, but the finding that the professional rules were breached does not without more support the conclusion that the person is liable in civil law (Novitaris, ECLI:NL:HR:2015:831; Vie d’Or, ECLI:NL:HR:2006:AW2080). A party seeking to recover loss brings the civil claim; a party wanting the conduct tested against the professional norms files a disciplinary complaint. The routes can run in parallel, but the outcome of one does not bind the other. What the disciplinary tribunals require of conduct towards the opposing party appears, for instance, from the case law on threatening publicity as a means of pressure.
What decides the outcome
The outcome is rarely decided by the standard itself, but by whether it was breached in the specific case, by causation and by the assessment of the loss. A party holding a professional liable is well advised to substantiate the breached norm, the error and the hypothetical course without that error sharply, to delimit the circle of protected interests and to keep an eye on the limitation period.