Lawyer acts for both VvE and VvE member, is that allowed?

Lawyer acts for both VvE and VvE member, is that allowed?

In a recent ruling by the Arnhem-Leeuwarden Board of Discipline A lawyer was reprimanded for acting for an Owners' Association (hereafter: VvE) as well as for a member of that VvE. According to the Council, he had violated the core values of independence and partiality. Lawyer Myrthe de Vries specializes in VvE Law and explains how the Council arrived at this judgment.

What it was about

The attorney had been representing the owner of an apartment right for some time. This owner, together with another party, the complainant, was co-owner of several apartments within the VvE. The parties had come into conflict with each other over the division of the common apartment rights and were conducting a court proceedings.

In April 2021, the owner initiated a CoE meeting, at which it was decided to amend one of the apartment rights that was the joint property of the owner and the complainant. The complainant then asked the subdistrict court for this annul the decision.

Apartment owner's lawyer will also act for VvE

The attorney who had previously acted for the owner then represented both the owner and the VvE in these proceedings. The complainant then gave the attorney the opportunity to recuse himself as attorney for the VvE because of a conflict of interest. In response, the attorney informed her that he saw no reason to do so.

Complaint against lawyer acting for VvE and apartment owner

The complainant then filed a complaint against the lawyer, alleging that he could not operate independently. After all, he was simultaneously acting for the owner, who had an interest in the zoning change. That interest would not readily coincide with the VvE's interest.

Lawyer VvE has potential conflict of interest

The Board of Discipline ruled that the attorney had violated the standard of decency under Section 46 of the Lawyers Act by failing to step down from one of the conflicting roles in a timely manner. It was clear that the interests of the VvE and complainant were potentially in conflict with those of the owner.

At the hearing before the Board of Discipline, the lawyer acknowledged that he had acted in a disciplinary way. The lawyer said he had studied the file the day before the hearing and researched case law which led to new insights for him at the time.

In the opinion of the Council, the lawyer could and should have done that research much earlier.

Reprimand for VvE lawyer

The council imposed the measure of reprimand on the lawyer. This emphasizes the importance that the disciplinary judge attaches to the integrity and independence of lawyers. A lawyer must always operate independently and put his client's interests first. If those are two clients and if those interests may come into conflict, the lawyer should refuse to provide his services.

Lawyer has conflict of interest in acting for VvE

This case underscores the crucial importance of independence and impartiality within the legal profession. Although the Board of Discipline did not conclude that there is always a conflict of interest when a lawyer acts for both an owner and the VvE, that conflict of interest is always lurking.

Also, that conflict of interest may arise at a later time. From that moment on, the lawyer can no longer act for either party. The message from the Board of Discipline is clear: when in doubt, don't do it.