Professional liability

Professional liability

An organization or person can be held liable when errors are made in the exercise of a profession. These errors can be made by owners, directors, and employees of an organization. Professional errors can range from providing incorrect designs, advice, or plans to gross errors. Conversely, a client may suffer damage because an incorrect design, advice, or plan is provided by a professional service provider. Various subfields play an important role in professional liability, such as disciplinary proceedings and professional liability insurance.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of liability law. Contact us to discuss the possibilities.

The legal standard: reasonably competent and reasonably acting professional colleague

Whether a professional is liable for a professional error is assessed on the basis of a fixed standard. A professional must act as may be expected of a reasonably competent and reasonably acting peer . Therefore, not every mistake or disappointing result constitutes an error leading to liability; the crucial question is whether the professional exercised the required care under the given circumstances. This duty of care applies to various professional groups, from lawyers, notaries, and accountants to real estate agents, architects, and (tax) advisors. Our lawyers and in-house counsel rigorously assess the service provider's conduct against this standard and the applicable professional and ethical rules.

Legal bases: breach of contract and unlawful act

Professional liability can rest on two legal grounds. If an agreement exists between the service provider and the client – ​​almost always a contract for services (Article 7:400 of the Dutch Civil Code) – then there is an attributable failure or breach of contract pursuant to Article 6:74 of the Dutch Civil Code. If a contractual relationship is absent, or if a third party suffers damage, liability may be based on the unlawful act of Article 6:162 of the Dutch Civil Code. In both cases, it must be established that an error was made, that the client or third party suffers damage as a result, and that a causal link exists between the error and that damage. These are the same core questions that are central to our broader expertise in Liability, Damages, and Insurance .

Professional errors by the lawyer

The lawyer themselves can also commit a professional error. The standard in such cases is that of a reasonably competent and reasonably acting lawyer. Examples of possible professional errors include allowing a limitation or appeal period to expire, failing to institute a legal remedy or doing so too late, providing incorrect or incomplete advice, failing to adequately warn of legal risks, or errors in procedural documents and agreements. Whether such an error leads to liability depends, among other things, on whether the client would have achieved a better result had the client acted correctly. We assess both claims against lawyers and the defense thereof, and therefore know the playing field from both sides.

Disciplinary law and civil liability

Many professional groups have their own disciplinary regulations, such as the legal profession, notarial practice, accountancy, and the medical sector. It is important to realize that disciplinary law and civil liability are two separate processes with different objectives. Disciplinary law assesses whether the professional has complied with the applicable codes of conduct and professional rules, thereby safeguarding the quality of the profession; a disciplinary judge may impose a measure but, in principle, does not award damages. A separate civil procedure required for damages. A disciplinary conviction does not automatically establish civil liability, but it can serve as an important indication in damages proceedings. We advise and litigate in both processes and monitor their mutual connection.

Statute of limitations for a claim due to professional negligence

A claim for damages due to professional negligence is subject to the statute of limitations. Pursuant to Article 3:310 of the Dutch Civil Code, a legal claim for compensation for damages generally lapses after five years from the date the injured party became aware of both the damage and the liable person, with a maximum period of generally twenty years following the damage-causing event. Because the commencement of these periods leads to debate in practice, it is advisable to seek timely legal advice if professional negligence is suspected. We quickly assess whether your claim can still be filed in time and, where necessary, interrupt the statute of limitations.

Professional liability insurance

Many regulated professions are subject to mandatory insurance. Under the Regulation on the Legal Profession, lawyers are required to hold professional liability insurance to ensure clients have recourse in the event of financial loss caused by a professional error. Professional liability insurance typically covers pure financial loss resulting from errors in the exercise of the profession, whereas property damage or personal injury is generally covered by general business liability insurance. When a claim is filed, questions often arise regarding coverage, deductibles, reporting to the insurer, and the interpretation of policy conditions. Our legal experts guide both the professionals being sued and their insurers, as well as the aggrieved clients, through this insurance process.

For the group and the baker on the corner

Professional liability affects both large organizations and small business owners. Whether you are an international group assessing a substantial claim against an advisor, or a local entrepreneur suffering damages due to an error by your accountant or real estate agent, our mixed teams of lawyers and in-house counsel operate at the appropriate level. We advise on the chances of success, conduct negotiations, engage experts where necessary, and litigate when a settlement is not feasible. In this way, we combine legal acumen with a practical, cost-conscious approach.