Under the provisions of the Code of Civil Procedure, an attorney may be an advocate, a legal adviser, a patent attorney (in industrial property cases), a person managing the party’s assets or affairs, or a person who has a permanent contract-for-services relationship with the party, provided that the subject matter of the case falls within the scope of that contract. In addition, a party’s attorney may be a co-party to the dispute, the party’s parents, spouse, siblings or descendants, as well as persons in an adoptive relationship with the party.
Unlike criminal procedure, civil proceedings contain no restrictions on the number of attorneys.
Under Article 87¹ of the Code of Civil Procedure, parties must be represented by a professional attorney in proceedings before the Supreme Court. A professional attorney is a legal adviser or an advocate. Mandatory representation by an advocate or legal adviser also applies to procedural acts connected with proceedings before the Supreme Court that are undertaken before a lower court. However, mandatory representation in this scope does not apply, among other things, to proceedings for exemption from court costs or for the appointment of an advocate or legal adviser.
If a party has no place of residence, habitual residence or registered office in the Republic of Poland or another European Union Member State and has not appointed an attorney for the case residing in the Republic of Poland, that party is required to designate an attorney for service in Poland.
Due care must be taken to ensure that an attorney is properly authorised to act in court proceedings. Under Article 379 of the Code of Civil Procedure, improper authorisation of an attorney is grounds for the invalidity of the proceedings.
Under Article 89 of the Code of Civil Procedure, an attorney must, at the first procedural act, attach to the case file the power of attorney bearing the principal’s signature, or a certified copy of the power of attorney together with a copy for the opposing party. An advocate or legal adviser may certify copies of the power of attorney granted to them and copies of other documents evidencing their authorisation. Otherwise, the court may issue an order excluding the attorney from participating in the case; such an order is not subject to appeal. It should also be noted that, under Article 97 of the Code of Civil Procedure, after a claim has been filed the court may provisionally allow a person who is temporarily unable to produce a power of attorney to perform an urgent procedural act. In such a situation, an application should be submitted for provisional admission to participate in the case as the party’s attorney and for a seven-day period to be set for presenting the power of attorney or for the party to approve the act. If the deadline expires without effect, the court will disregard that person’s procedural acts.
Who are professional attorneys?
The Act on the Bar of 26 May 1982 and the Act on Legal Advisers of 6 July 1982 respectively specify who may become an advocate or a legal adviser. It should be noted here that changes entering into force in July 2015 essentially equalise the professional powers associated with both titles. After the changes enter into force in July 2015, the difference between the professions will concern employment relationships. Unlike an advocate, a legal adviser may be employed under an employment relationship. If a legal adviser is employed, they may not act as defence counsel in criminal cases. In addition, they may provide legal assistance in parallel, just like an advocate.
As regards the requirements for persons aspiring to practise as advocates or legal advisers, such persons must possess the qualifications specified respectively in the Act on the Bar and the Act on Legal Advisers, be entered on the list of legal advisers or advocates, and take the oath.
Legal assistance provided by an advocate or legal adviser may consist of providing legal advice and consultations, preparing legal opinions, drafting legal instruments and contracts, and appearing before public authorities and courts as attorneys or defence counsel.
Under the amendment of 27 September 2013 to the Code of Criminal Procedure and certain other acts, which will enter into force on 1 July 2015, a legal adviser will be able to act as defence counsel in criminal proceedings and in cases concerning fiscal offences.
The court may appoint an advocate or legal adviser as an attorney for a party, both for a person who has been fully or partially exempted from court costs and for a person who has not been exempted from court costs. Depending on the party’s status, the court examines whether appointing an attorney is necessary to avoid undermining the means of subsistence required by the party and their family, or whether the party has sufficient funds to cover the remuneration of a legal adviser or advocate.
A natural person who has not been exempted from court costs should submit a declaration that they are unable to bear the cost of an advocate’s or legal adviser’s remuneration without undermining the means of subsistence required by themselves and their family. If the party is a legal person, such as a limited liability company, or another organisational unit granted legal capacity by statute, that entity should demonstrate that it lacks sufficient funds to cover the remuneration of a legal adviser or advocate.
An application for the appointment of an advocate or legal adviser should be submitted together with an application for exemption from court costs or in a separate document. The application may also be made orally for the record in court.
The court grants the application if it considers the participation of an advocate or legal adviser necessary in the particular case, including because of the complexity of the case or the party’s inability to manage the proceedings. Under Article 357 of the Code of Civil Procedure, an order appointing an advocate or legal adviser is served on the party without reasons. An order refusing to appoint an advocate or legal adviser is served on the party with reasons and may be challenged by a complaint.
Civil procedure does not limit the possibility of submitting further applications for the appointment of an advocate or legal adviser. However, a renewed application may not be based on the same circumstances as the application that resulted in an order refusing to appoint an advocate or legal adviser. An application based on the same circumstances will be rejected. No complaint may be lodged against the rejection of such an application.
It is also worth referring here to the Act of 19 August 1994 on the Protection of Mental Health. Under Article 48 of that Act, the court may appoint a court-appointed advocate for a person directly concerned by the proceedings, even without an application, if that person is unable to submit an application due to their mental health condition and the court considers the advocate’s participation necessary. The Supreme Court addressed this provision in its order of 5 April 2012, holding that the possibility of appointing a court-appointed advocate without an application from the party is the court’s duty where a participant in the proceedings is unable to defend their rights independently because of their mental health condition.