Free choice of lawyer with legal expenses insurance

Questioner

Legal expenses insurance do you have free choice of lawyer or not? I mean do you remain dependent on the lawyer assigned to you or can you ask them to transfer the case to a specialist office?

Lawyer

That depends. Only if the case must be handled by a lawyer, and therefore the case is one where there is mandatory legal representation, then there is a right to free choice of lawyer. You can always ask for the case to be transferred to someone else, but that is often refused. Questions are free.

Questioner

So when negotiating and litigating as a civil servant against the employer, you do not need a lawyer and you are dependent on the legal expenses insurer.

Lawyer

That's right, an employment case is not reserved for lawyers alone, but sometimes the dispute settlement offers a solution. If there is a difference of opinion between you and the insurer about the approach, you can ask for a second opinion.

Questioner

Yes I saw on the internet many companies that would like to do a second opion. Is it useful to let them do that or is it better to do it yourself?

Lawyer

Legal expenses insurers are obliged to offer you as the insured the free choice of lawyer if a procedure is started at the subdistrict court or administrative court. This is regulated in the European Directive 87/344/EEC and the article 4:67 of the Financial Supervision Act based thereon. You (the insured) are legally entitled to free assistance from a lawyer of your choice as soon as legal or administrative proceedings are conducted, including outside the legal profession's procedural monopoly, such as before the subdistrict court or administrative court. As appears from the explanatory memorandum (TK 1988-1989, 21 076, no. 6, p. 6), the free choice of lawyer arises as soon as the insurer requests someone to provide legal assistance in a procedure, whereby it is irrelevant whether this assistance provider is employed by the insurer or practices independently of that insurer. For example, as soon as a procedure is conducted before the subdistrict court, the right to free choice of lawyer arises. The minister formulates this as follows (p. 6 Explanatory memorandum): 'that an insured has free choice of lawyer as soon as a lawyer or other expert is asked to defend, represent or promote the interests of the insured in a legal or administrative procedure. The timing of the engagement of a lawyer or other expert is at the discretion of the insurer. If this is decided, the insured has the choice of appointing a lawyer or expert who is independent of the insurer or an expert employed by the insurer. [...] Free choice applies when a legal or administrative procedure is instituted. In some of these procedures, only lawyers are legally authorised, while in others, everyone is in principle authorised. Free choice therefore does not only apply in procedures that impose specific restrictions on the persons who represent a client in them.' Although the insurer [the policy] determines when proceedings will be conducted, as soon as proceedings are instituted, the insured determines who will act as counsel for him in those proceedings, either an (expert) lawyer employed by the insurer, or an (expert) external third party, or an external lawyer. In so many words, the Minister confirms that no costs may be charged to the insured in respect of the fee of this lawyer, nor may any restrictions be imposed on the lawyer's hourly rate (except for the acceptability of a total cost ceiling per case).