Dutch regulated lawyers (advocaten) sometimes refer to themselves in English as solicitors. This is technically incorrect, because the responsibilities allocated to each branch of the legal profession in The Netherlands and England and Wales are different.
In The Netherlands we distinguish “advocaten” from “notarissen”. An advocaat is a regulated legal adviser and authorised to represent clients in the lower and higher courts. An advocaat must act in the interest of his client. Notarissen are also regulated legal advisers, but they have specific public legal duties, for example the execution of a valid deed required for certain transactions of importance (e.g. for the transfer of land, houses, ships and shares and making wills). Notarissen are impartial and act in the interest of any party related to a transaction.
The legal profession in England and Wales is divided into “solicitors”, “barristers” and “notaries” and – in contrast to The Netherlands – its members are also officers of the court. This means they must act for their clients and in the interest of justice at the same time.
Solicitors advise clients on private and commercial issues and transactions, represent them in the lower courts, and prepare cases for barristers to try in the higher courts. They also advise individuals of their rights against the state and public authorities, for example in immigration cases and in criminal or administrative proceedings. Solicitors are regulated by the Solicitors Regulation Authority. They are authorised to transfer or charge land and buildings (conveyancing), draw up wills and do probate work (afwikkeling nalatenschap), set up trusts, and administrate oaths and statutory declarations (het afnemen van een onder ede afgelegde verklaring). A Dutch advocaat is not allowed to do so. Solicitors, however, cannot represent clients in the higher courts, an advocaat can.
Barristers are specialist legal advisers, usually instructed by solicitors to appear in the higher court or to provide specialist advice. Barristers are independent, objective and are expected to advise clients on the strengths and weaknesses of their case. Some become Queen’s Counsel (QC) and receive “silk” for their outstanding ability (these are the so-called “silks”). They act in very serious and complex cases. Barristers are regulated by the Bar Council.
A notary is a member of the smallest but oldest branch of the legal profession in England and Wales tasked primarily with the authentication and certification of signatures, authority and capacity relating to documents for use abroad (as part of legalisation) or in maritime cases (ship protests).
It is difficult for an outsider, especially one without a common law background, to differentiate between the three branches of the legal profession in England and Wales. The reason is the overlap. Solicitors and barristers both give legal advice. Notaries are allowed to provide general legal advice and may be involved in conveyancing and probate work. Solicitors are recently allowed to represent clients in the higher courts when they have passed an exam to obtain the Higher Rights of Audience.
Joost Maassen
maassenlaw.com
