Niels van der Laan is a “phenomenal criminal lawyer” who is “sharp minded” and stands out in fraud investigations, corruption cases and criminal tax matters.
Niels has a great deal of experience with technically complex transnational litigations. He has acted as lawyer in many high-profile prosecutions and investigations pertaining to (among others) corruption, embezzlement, market abuse, money laundering and tax fraud. His clients are (senior management of) publicly traded companies, banks, trust offices, and other companies in the financial and private sector. He advises on both criminal defence strategies and criminal liability risks.
You have a wide-ranging corporate crime practice. What have you enjoyed working on the most?
Defending the president of the Central Bank of Curacao regarding allegations of tax fraud was a recent legal highlight for me, although for a large part of the trial it was an emotional low point for the client. After years of proceedings, the client was fully acquitted in both first instance and on appeal and, perhaps more importantly, also substantively vindicated. The judges left no doubt that the allegations should never have merited a criminal prosecution. There were no false tax returns filed and no evidence of any malicious intent. It was a case of great personal as well as political interest. It was an intriguing case from a legal point of view, and yet such a case will also always have a sour aftertaste for me. Why did it have to come this far?
What qualities and skills do business crime defence lawyers need to succeed?
An important quality is simple human understanding. You need be able to put yourself in the shoes of the suspect, regardless of whether that is an individual or a corporation. After all, in a corporation it is ultimately the behaviour of people that leads to potential criminal liability. It is very important to understand why people did what they have done. In business crime defence, more so than in general criminal cases, a defence often boils down to a lack of intent. Because often in such a case, certain things did go wrong administratively, and certain operations were handled at least clumsily. But within a complex set of human interactions it is rarely unambiguous whether there is malicious intent at play or simply a combination of unintentional human errors. When presenting the alternative account for the client, it helps a lot if you as a lawyer really understand what moved the people involved to act the way they did.
What new types of fraud are you seeing emerge and develop during the covid-19 pandemic? How are you ensuring that you and your clients are well equipped to tackle them?
For the time being, we are only seeing the consequences in a limited manner. Not only is the economy virtually at a standstill, the investigative authorities are also working from home. It is not easy to conduct a thorough investigation if it is not yet possible to conduct searches to gather material. My expectation is that there will be a wave of new cases once the pandemic has subsided. Not only will all of the ongoing investigations suspended by covid-19 resume, but there is likely to be a great deal of attention paid to fraud concerning the government’s various covid-19 economic relief programs. Forced by circumstance, it has been relatively easy for companies to get government relief in recent months. There was no in-depth monitoring of applications to see whether all conditions were met. You don’t have to be a fortune teller to understand that several companies may have cut some corners (for example by being creative with the turnover figures) to become eligible for relief.
What do you think will be the greatest challenge faced by the generation of white-collar crime lawyers behind you?
The relations between the actors in criminal law seem to be increasingly hardening. Discussions with public prosecutors as well as public hearings are becoming increasingly polarised. Cutbacks in both the judiciary and the Public Prosecution Service have led to a scarcity of time that may be spent by them on any one case. This has led to less leeway, but above all less appreciation, for driven and substantive refutations by the defence. It is not uncommon for public prosecutors and judges to approach the defence as if they were an annoying bump on the road to a conviction that they have already decided to be a just outcome. That gives me some worries about the future and I think that it is important for future white-collar crime lawyers to be aware of this trend and, above all, to not let it disaffect them. It is not difficult to become disillusioned as a lawyer in the current criminal justice culture, so don’t let that happen!
What advice would you give to your younger self?
From the very first moment that I became a lawyer, I was ambitious and driven. I wanted to profile myself and be at the forefront. In my urge to always do things perfectly, I sometimes got ahead of myself. My advice is therefore: you can never predict everything correctly and you will always make some mistakes. Don’t be ashamed of that. I have learned that it is much stronger to sometimes say to your client: “In hindsight we should have done that differently”. Your client is not foolish. On the contrary, he often senses flawlessly when things don’t go as planned. But your client also understands very well that as a lawyer you are often fighting a rear-guard action and you cannot control everything. He will have much more confidence in you if you are not afraid to communicate openly about things that could have been handled differently, than if he feels that you are trying to sweep miscalculations under the rug.