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THE NETHERLANDS LEGAL AID PROGRAM
This
section of the “Equal Justice Update” Website focuses on the Netherlands, a
European country that has assumed a leadership role not only as measured by the
level of its investment in legal aid (especially civil legal services), but also
in its innovative approaches to the financing and delivery of legal services to
low and modest income citizens. It also is one of the many national legal aid
programs forced to respond to governmental efforts to reduce or at least cap
legal aid expenditures.
After a brief introduction to the Kingdom of the Netherlands, the following report discusses the creation and evolution of the Netherlands system of legal aid, leading to its current structure. The report then analyzes specific features of the current system, including organization, delivery, funding and performance.
THE POLITICAL-SOCIAL-LEGAL CONTEXT IN BRIEF
THE HISTORY OF LEGAL AID IN THE NETHERLANDS
THE CURRENT NETHERLANDS LEGAL AID SYSTEM AFTER THE 1994 ACT
LEGAL AID FUNDING IN THE NETHERLANDS
EXPERIENCE UNDER THE 1994 LEGAL AID ACT
I. THE NETHERLANDS: THE SOCIAL, POLITICAL AND
LEGAL CONTEXT IN BRIEF
The Kingdom of the Netherlands, bordering the North Sea between Germany and Belgium, is slightly less than twice the size of New Jersey and with a population of 15.5 million. The people of the Netherlands enjoy many of the benefits of living in a rich, industrialized nation: a life expectancy over 78 years, a 99% literacy rate, a $22,000 per capita income, and a relatively low unemployment rate. This constitutional monarchy, however, also must deal with its own citizens who inevitably fall through the cracks.
The Dutch legal system is a civil law system incorporating French penal theory. Unlike in the United States, the Dutch constitution does not permit judicial review of acts of the States General (Legislature). The strong Dutch economy was built on private enterprise, yet the government plays a strong role in its regulation, including welfare programs. The Netherlands utilizes civil courts and criminal courts, much like the United States. On the civil side, some courts require the use of a lawyer, while others do not. There are 62 “Kantogerechten” for small claims, unemployment, and real estate rental matters which do not require a lawyer.[1] There are nineteen “Arrondissementsrechtbanken”, district courts for all other claims.[2] The district courts require representation by counsel. There are five “Gerechtshoven” Courts of Appeal, and a Supreme Court located in The Hague, the Dutch seat of government.[3]
The civil law court process is generally faster than its United States counterpart. There is no jury system in the Netherlands and the hearing of witnesses only takes an hour or two.[4] As is common in civil law jurisdictions, judges ask most of the questions during the examination of witnesses. Lawyers are usually paid by the hour. The winning party collects legal fees based on a fixed tariff, however, actual legal fees are often higher than the awarded legal fees. Court costs for both parties are a maximum of 1.9% of the claim or $4,000, whichever is less.[5] The Netherlands current structure of legal aid first formally took shape in the 1970’s, however, its structural genesis can be found in 1957, and its conceptual genesis begins even earlier.
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II.
HISTORY of the
Netherlands Legal Aid System
Before 1957, the Netherlands was without any formal civil legal aid structure. In fact, the government was not involved in the provision of legal aid for the poor. Despite this lack of regulation, the Dutch private Bar did provide some free legal services to those in need.[6] In 1890, the enactment of the new Criminal and Criminal Procedure Codes provided for mandatory representation in criminal cases. Many local bar associations went beyond these requirements to offer civil legal aid as well.[7]
In 1913, these services expanded with the establishment of private legal aid organizations which received modest subsidies from city and national governments. These legal aid organizations continued to grow until the mid-1920’s.[8] The reason for this generosity by the Dutch Bar can be found in its name for legal aid, “pro Deo” meaning “for God.”[9] Eventually, even this motivation proved inadequate and the Dutch Bar demanded some compensation for its services to the poor. The legislature created a fee system in the 1950’s[10] to compensate attorneys for a portion of their “services.”[11]
This first publicly funded legal aid program was a judicare system introduced in 1957.[12] Namely, the “Wet Rechtsbijstand On-en Minvermogenden” [WROM] (The Act on Legal Aid for Persons of Insufficient and Limited Means) enabled qualifying low income individuals to receive the services of an attorney, free[13] of charge.[14] The lawyer’s services were paid for by the government on a declaration basis according to a standardized fee chart.[15] To establish eligibility for these free services, a litigant had to obtain a certificate of insolvency from the local government. Then, a lawyer at the Bureau of Consultation decided if the citizen had justly filed for free legal aid and if there was a strong chance of winning the suit.[16] If both requirements were met, the litigant was assigned a private attorney who was then obligated to represent the client. The attorney then filed his assignment with the clerk of the courts who processed the payment to the attorney.[17]
The 1957 WROM was based on the welfare model and legal aid was viewed as a “branch of social care.”[18] Therefore, it comes as no surprise the system did not accomplish one of its goals, the elimination of inequality.[19] In the late 1960’s the Netherlands experienced the same student revolutions that swept Western Europe. The 1957 legal aid system under WROM allowed many citizens to fall through the cracks. Students were the first to vocalize concern about these “gaps” and demanded change. In 1970, a law students’ magazine published a highly controversial issue, known now as the ‘black issue’, describing the gap in legal aid.[20] The students argued the failure of the existing legal aid system had three main causes. First, the Bar was so focused on traditional largely commercial fields of legal practice they lacked expertise in areas that concerned the poor.[21] Second, most of the attorney’s who received assignments to represent the indigents were newly-admitted and untrained. Third, the location of law firms in wealthy areas of the cities was as a barrier to poor litigants.[22]
Students were not the only voice concerned about the gap in legal aid. Soon after the ‘black issue’, professional studies supported the student criticism. They reported citizens most often needed information and legal advice, rather then the litigation-oriented legal aid the 1957 system focused on.[23] Student movements sought to fill in this gap in legal aid with the formation of “law shops.” These law shops were staffed by volunteers, most of them law students.[24] Soon, other para-legal organizations sprung up offering specialized legal advice in areas relating to the poor.[25] The “law shops” were extremely successful in filing in the gaps in Dutch legal aid. By the mid-1970’s law shops were giving legal advice, assistance, or even representation to over 60,000 people per year.[26]
The success of the “law shops” prompted a government response. In 1974, “Buros voor rechtshulp” (Legal Aid Bureaus) were established, much like the law shops, to provide front line legal aid.[27] The Legal Aid Bureaus worked much like the 1957 system only actually addressed the legal needs that most citizens needed help with.[28] First, as in the 1957 system, the Legal Aid Bureaus granted certificates to clients eligible for free legal aid, so the lawyer providing the services could be subsidized by the state.[29] Second, the Legal Aid Bureaus had salaried lawyers who provided legal advice, information, or other help much like the law shops. The Legal Aid Bureaus were fully funded by the Ministry of Justice. As a result, the Dutch legal aid budget grew immensely throughout the 1970’s and 1980’s. It was during this time the Netherlands became a global model for progressive legal aid delivery.
In the late 1980’s, the Dutch government began attempting to limit the budget for legal aid. For the first time, the government moved from being an ally of legal aid to somewhat of an adversary. First, fees for lawyer assignments were frozen at 1982 levels. Second, the income limits for free legal aid were lowered, thereby making the “means test” more stringent and reducing the population eligible for government-subsidized legal assistance. And third, the Polak Commission was assigned to study additional options calculated to reduce the legal aid budget.[30]
The Polak Commission reached three main conclusions.[31] First, the demand for legal aid is by its nature uncontrollable. Second, quotas on assignments would be futile. And third, international treaties[32] and the Dutch constitution[33] guaranteed legal aid as a socio-constitutional right. As a result, the public’s access to legal aid provisions could not be limited in advance.[34] Therefore, the Dutch government would have to lower the budget for legal aid in a manner consistent with its treaty and constitutional obligations. The government’s attempt at achieving this goal is reflected in the 1994 Dutch Legal Aid Act. Legal Aid under the 1994 Act is now the current system of legal services delivery in the Netherlands.
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III.
The Current
LEGAL AID SYSTEM IN THE NETHERLANDS AFTER THE 1994 ACT
The 1994 Dutch Legal Aid Act became effective on January 1, 1994.[35] The 1994 Act impacted Legal Aid in the Netherlands in four significant ways. First, income limits were lowered, reducing the size of the eligible population. Second, the Legal Aid budget was rolled back to 1989 levels. Third, and perhaps most significant, the Act increased the size of the financial contributions legal aid clients were expected to make to the costs of their own representation. Fourth, the Act restructured the delivery system to centralize the program’s operations. It established five Councils for Legal Aid to take over work of the Legal Aid Bureaus, organize the delivery of legal aid in a local jurisdiction, and manage administration of applying attorneys.[36]
Taking these changes in turn, first, the lowering of income limits drastically reduced the number of individuals who qualified for legal aid. This part of the law was intended to decrease national spending costs not only through stricter financial eligibility standards but by imposing a tougher merits test.[37] This approach raised some concerns. Even on its face it appears to only advance one of the goals of the Act (lower the Legal Aid Budget), while failing the other goal (satisfy the socio-constitutional necessity of providing legal services to the poor). As a result, the 1994 Act did not focus all of its punch in this area. The second major change, freezing the spending levels at 1989 levels was not accomplished by statute, but was effectively the result of the stricter means test, and the added private contributions.
The third main change, adding private contributions by the recipients of legal aid, was an attempt to encourage potential litigants to look for other strategies to solve their disputes.[38] This reasoning assumed many legal aid recipients were “free riders” accepting the free services when they may not have really needed them. Under the new system, these people would only seek legal aid if they really needed it because they would have to pay a portion out of their own pocket. Or, at a minimum, these people would try self-help as a means of solving their problems before seeking the help to achieve a solution to their problem without the use of a lawyer. In practice, a litigant must obtain a “financial capacity certificate” so the program administration can determine the level of contribution required. The individual then pays this contribution directly to the legal aid provider. In 1997, the client contribution ranged from 110 Dutch guilders (approximately $55) for persons with an income at social security benefit level, up to 975 Dutch guilders (approximately $425) for those with incomes at the maximum level still eligible for legal aid.[39]
In its fourth major change, the 1994 Act restructured the control of legal services. It set up five Councils for Legal Aid and charged them with responsibility for administering and monitoring the provision of legal aid in their respective jurisdictions.
The Councils also administered the assignment of attorneys. Attorneys are not required to accept legal aid assignments in the Netherlands. However, providing legal aid is a good way for a young attorney to get a base of client work and income. Many established firms also participate in legal aid for reasons similar to the pro bono motivation found in the United States. The Legal Aid Councils reviewed the credentials of lawyers and staff who applied to represent a client in court.[40] This feature of the new law was intended to improve the quality of legal representation provided through legal aid. The Councils accomplished this goal using conditions for admission.[41] The Legal Aid Councils are able to unilaterally set out requirements for lawyers who want to be active in the field of legal aid. A lawyer who is not admitted by the Legal Aid Council may only provide a client with legal aid in two specialized cases.[42]
All five Legal Aid Councils have set forth three conditions for admission to legal aid service. One Council[43] has also added professional requirements. First, lawyers must commit to a minimum and maximum number of cases. The minimum requirement is to ensure a true and permanent relationship of the attorney with the Legal Aid Council. The maximum limit is to ensure a standard of quality.[44] Second, lawyers must commit to ensure several standards of office organization. It must be possible to reach the lawyer by telephone Monday through Friday, it must be possible to meet with the lawyer or secretary during office hours, and the attorney must arrange for substitution during his holiday or when on sick leave.[45] Third, upon request, lawyers must compile and provide reports on services rendered to safeguard the quality of legal aid.[46]
The Legal Aid Council in The Hague has also added four professional requirements that may be adopted by the other Councils soon. First, the lawyer must have completed the professional training of the Lawyer’s Association.[47] Second, in the next three years, the lawyer must take a course in the field of law in which she is providing legal services.[48] Third, the lawyer must have provided services in at least twelve cases in the field of law relevant above. Fourth, the lawyer must be a member of the local study group that studies the developments in the respective area of law.[49] These stringent requirements should guarantee high quality legal aid representation in the Netherlands.
In addition to attempting to achieve higher quality, the addition of the Legal Aid Councils changed the position of legal aid bureaus substantially. First, the legal aid bureaus lost autonomy and staff.[50] The bureaus had once administered the assignments of legal aid subsidies,[51] yet after the 1994 Legal Aid Act the bureaus were merely puppets of the Legal Aid Councils. Second, the legal aid bureaus now must compete with the local bar to receive assignments from the Legal Aid Councils.[52] Third, legal aid bureaus have now lost all intellectual exchange of ideas with universities and other legal facilities in the Netherlands.[53] Originally, the legal aid bureaus took a page out of the operating book of the law shops, but this is no longer the case.
After all of these changes in 1994, the Netherlands is left with a system of legal aid that looks so new, and yet so familiar at the same time. Still alive is the basic original structure of the 1957 system. Only now, instead of a litigant obtaining a “certificate of insolvency”, he must obtain a “certificate of financial capacity” and pay a personal contribution determined by scale. The litigant is then still granted an assignment, yet only now this assignment is administered and given by a Council for Legal Aid.
Also alive are basic structural components found in the 1957 system. Legal aid is available to nationals, resident foreigners, non-resident foreigners, and stateless persons. Only individuals, however, may receive legal aid.[54] Other than the financial conditions described above (the “means test”), there are no legal or other tests applied to receive legal aid.[55] The nature of legal aid available includes all steps prior to the institution of court proceedings, preparation of the case, and all representation at all proceedings in all courts, including special and appellate courts.[56] The legal aid facilities are the same in all parts of the country.[57] Under the current system, lawyers are selected by Legal Aid Councils, which then give assignments to litigants. Also new is the level of funding for legal aid in the Netherlands.
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IV.
LEGAL AID FUNDING IN THE
NETHERLANDS
Under the 1994 Act, a portion of the remuneration of a lawyer for her services is provided by a private contribution from the indigent litigant. This does not cover a significant amount of the lawyer’s legal fee, however. Therefore, despite the 1994 Act, the Netherlands Legal Aid Program is almost entirely government funded. Almost 100% of this funding is though the Ministry of Justice.[58]
In 1994, The Kingdom of the Netherlands had a population of almost 15.5 million people. Among these millions, 8,600 were lawyers, which translates to 56 lawyers per 100,000 inhabitants.[59] (In contrast, the United States has over 300 lawyers for every 100,000 inhabitants and England approximately 70.) In 1996, the Netherlands spent $203 million on legal aid, accounting for $13.1 per capita.[60] (Of the $13.1 per capita, $ 4.1 was for representation in criminal cases and $9 was for representation in civil cases. (NOTE: by 1999 government expenditures on civil legal representation had crept up to $10.50 per capita.)
Government spending for legal aid has effectively been frozen at 1989 levels, yet this is not necessarily reflective of a change of attitude toward legal aid. The legal aid reductions coincided with the Conservative government’s attempt to reduce welfare spending on the whole.[61] In fact, legal aid enjoys funding protections other many welfare programs do not. In part this is because legal aid is not as significant as an expenditure as other welfare programs, and legal aid is somewhat hidden in the budgets of the Ministry of Justice.[62] But more importantly, legal aid funding can only be reduced to a certain level until socio-constitutional protections will shield it from further reductions.[63]
The Bar generally receives about 82% of the legal aid expenditures with the remaining funds distributed to support a network of legal assistance offices.[64] Law shops rely almost entirely on aid from the Ministry of Justice for their administrative expenses.[65] The Netherlands government’s share of the average per case cost is about $516 (with an additional $95 paid by client contribution, In comparison, the government’s average per case legal aid cost in England is $661, in Sweden $710, in Norway $840, and in Finland $300.[66]
From 1981 to 1991 there was actually a 28% drop in remuneration rates to lawyers. Since payment is determined by a fixed fee chart, the failure to update remuneration levels was a good way to keep costs down.[67] From 1993 to 1996, however, remuneration rates to lawyers rose 9%, while client contributions rose 5%.[68]
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V.
Experience under
the 1994 Legal Aid Act
The Dutch government’s announced goal when it passed the 1994 Legal Aid Act was to lower and stabilize the legal aid budget, while still upholding its socio-constitutional obligations to provide legal aid to its poor citizens. It is difficult to conclude if these conflicting goals have been met; however, there is some clear evidence of change brought by the 1994 Act.
The combination of lowered financial eligibility standards and required client contributions decreased the number of legal aid cases by 40% in just two years.[69] In the past, as many as 62 percent of Dutch households were eligible for legal aid. This dropped to 43 percent after the 1994 Act went into effect.[70] This caused the Dutch Parliament to enact “repair legislation” slightly raising the “means test.” After this amendment, roughly 50 percent of the Dutch population were eligible for legal aid.[71]
The joint Councils for Legal Aid and the Minister of Justice protested the consequences of the 1994 Act, arguing the pendulum had swung too far.[72] Law magazine articles shouted further protests. It is not clear, however, that the figures necessarily reveal the 1994 Act has failed its goals. Even before the 1994 Act, legal aid studies on the Netherlands showed a curvilinear relation between the frequency of contact with attorneys and respondents’ financial ability.[73] The poorest people, who received free legal aid, and the highest income levels, who were far above the eligibility maximums, had many more contacts with attorneys then the income levels in between.[74] One theory is that middle income citizens had to pay at least a portion of their legal fees, while lacking real financial ability to do so. The 1994 Act, by requiring financial contributions from every legal aid recipient, may have moved more people into this situation.
Studies conducted in 1997 tended to confirm this theory and may provide new insight into other reasons for the decline in legal aid cases. The studies concluded the rational basis theory explains the basic reason for the decease in legal aid requests by indigents. Specifically, when the cost of access increases, use decreases.[75] The studies also revealed the 1994 Act did not cause a “lumping effect” where individuals would refrain from taking any action to attack a legal problem at all. On the contrary, while the use of lawyers decreased in specific problems, self-help increased.[76] How effective this “self-help” may have been is unclear. Also unclear is whether the financial contribution requirement imposed on the poorest citizens is denying them effective access to the legal system.
VI.
CONCLUSION
For nearly two decades the Kingdom of the Netherlands operated (and funded) a legal aid delivery system that may have been the best in the world. Governmental back-peddling in the past decade and a half, however, has caused some erosion of this once mighty legal aid system. Nonetheless, the Netherlands program remains one of the more generously funded legal aid systems in the world and, furthermore, is still an important model for other nations.
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