Drafting general terms and conditions by lawyers: this is what belongs in them

Drafting general terms and conditions by lawyers involves comprehensively regulating six topics: the assignment, the limitation of liability linked to professional liability insurance, the management of third-party funds, the hourly rate and payment, the complaints procedure, and adherence to the NOvA Code of Conduct. Do this in plain language and ensure that the terms and conditions are provided before or at the time of the assignment; otherwise, they will not apply.

The short answer

1. Assignment: define the client, the scope, and that the assignment is granted to the firm.
2. Liability: link the limitation to the professional liability insurance.
3. Third-party funds: record how these are managed (third-party funds foundation or no receipt).
4. Rate and payment: hourly rate, office costs, advance payment and payment terms.
5. Complaints: refer to the internal complaints procedure and the Dean.
6. Delivery: hand over the terms and conditions before or at the conclusion of the contract.

Drafting general terms and conditions by lawyers: start with the assignment

The assignment clause is the foundation. The lawyer-client relationship is a contract for services (Article 7:400 of the Dutch Civil Code). Rule in this section:

• Client: specify who is the contracting party — the company, not the director in a private capacity, unless otherwise intended.
• Scope: which activities fall under the assignment; excludes tax and foreign law unless expressly agreed.
• Firm as contractor: the assignment is granted to the firm (partnership or private limited company), not to an individual lawyer. This protects employees against personal claims.
• Engaging third parties: the right to engage bailiffs or other advisors, excluding liability for their errors.

Correctly formulating the limitation of liability

This is the area where most mistakes are made. Lawyers are required to have professional liability insurance with minimum coverage of €500,000 per claim (Regulation on the Legal Profession). Does the limitation align with this:

• Limit liability to the amount paid out by the insurer in the specific case, plus the deductible.
• Include a subsidiary limitation in the event that the insurance does not pay out, for example, to the fee invoiced in the case.
• Exclude consequential damage and indirect damage.
• Never exclude intent and conscious recklessness — that makes the clause voidable.

You must be extra careful towards private clients: an overly broad restriction may be annulled as unreasonably burdensome. A clause that works against businesses is not automatically defensible against consumers.

Recording third-party funds

The Code of Conduct and the Regulation on the Legal Profession require that third-party funds — funds intended for the client or a third party — remain separate from firm assets. When drafting, choose between two lines:

• Third-party funds foundation: you receive third-party funds via a separate foundation. Stipulate that, in principle, no interest is paid and under what conditions payment is made.
• No third-party funds: since the relaxation, a firm may choose not to receive third-party funds. Document this explicitly so that clients know that payments are made directly between the parties.

Hourly rate, costs and payment

The financial chapter must be clear in advance — this is also a disciplinary duty to provide information. Include:

• Hourly rate and the authority to index it periodically.
• Office expenses and disbursements: court fees, bailiff's fees, extracts.
• Advance payment: the right to request an advance payment and to suspend work in the event of non-payment.
• Payment term, interest on late payment and collection costs.
• Any agreements regarding publicly funded legal aid (legal aid grant) and personal contribution.

Complaints procedure and code of conduct

Every firm must have an internal complaints procedure (NOvA Code of Conduct). Include the following in the terms and conditions:

• The complaints officer and the method of submission.
• The processing time.
• The next step: the dean or the disciplinary judge.
• A dispute and choice-of-law clause: Dutch law and the competent court.

Brief SME example: a small firm copied a liability clause from an IT model in which liability was limited to €1,000. In the event of a professional error, that clause proved to be decoupled from the insurance and untenable towards a private client. The link to the firm's own insurance was missing — precisely the point that distinguishes legal terms and conditions.

Delivery: otherwise nothing applies

Even perfect terms are worthless if they are not handed over on time. Provide them before or at the conclusion of the contract:

• Attach them to the order confirmation.
• Have the client confirm receipt.
• Refer to a source that can be consulted at any time, but do not rely on this blindly with consumers.

Honest recommendation

You can draft general terms and conditions by lawyers partly yourself: if you have an existing, sound set and only wish to adjust the hourly rate or payment term, a legal expert is not necessary. However, the limitation of liability and the link to your professional liability insurance leave little room for error — it is precisely this component that determines whether you are covered in the event of a professional error. If you are drafting terms and conditions for the first time, work with third-party funds, or serve private clients, have the text reviewed.

Want to know more? View the general terms and conditions by lawyers, first read what general terms and conditions by lawyers are , and see when it is better to have them drafted.

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