Leiden Law Blog

Temporarily suspend the three strikes and you’re out rule

Temporarily suspend the three strikes and you’re out rule

The newly revamped bar review for lawyers (Beroepsopleiding Advocaten) has recently sparked much discussion, given its tentative nature and the start-up problems that go along with it. Though it would not be feasible to propose a long term solution in the restricted scope of this contribution, I will aim to suggest an idea for a temporary measure in order to provide the necessary breathing space, so that the problems can be addressed without undue pressure.

Since the most important problems in the bar review have already been addressed in other publications, I would like to refer to just one problem in particular, to wit: the apparent tilt of the bar review towards lawyers with a more local and general practice. This is somewhat at odds with the current tendency in the Dutch legal sector towards specialisation, where lawyers (often at international law firms) commit themselves entirely to one specific area of the law such as mergers & acquisitions or corporate litigation. The net result is that these lawyers in particular suffer a disproportionate amount of stress, and perform below their usual standard in their daily work as a consequence.

This adverse effect is increased by the three strikes and you’re out rule, which is tantamount to a trainee lawyer being disbarred if the same test is failed three times. In my daily work in my training institute for lawyers I am confronted with the sometimes harsh consequences of the three strikes and you’re out rule on the lives of trainee lawyers on a regular basis, having already twice referred a trainee lawyer to psychological support. I can hardly imagine how this does not derogate the quality of their daily activities at work, and neither will their employers (as said: often international law firms) welcome the adverse impact on the daily work of the trainee lawyers in which they invest.

It is true that the three strikes and you’re out rule preceded the newly revamped bar review, having already existed in the old regimen of the BO/VSO. However, given the significant differences between the old bar review and the bar review as it exists now it is less relevant to point out the fact that the three strikes and you’re out rule did not cause many problems at the time. After all, the current level of the bar review is significantly higher than that of the former BO/VSO. In fact, the substandard level of the former BO/VSO was the reason for the major revisions in the bar review in the first place.

Temporarily suspending the three strikes and you’re out measure would in my opinion provide the breathing space that is currently necessary and desirable, in order for the current state of affairs in the bar review to be critically re-evaluated without undue pressure. In that way, the trainee lawyers involved will not be unduly disadvantaged in their career opportunities as a result of a bar review that is assuredly based on good intentions, but currently still somewhat in its infancy and facing a number of teething problems.

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