Legal representation – what is it?

What is legal representation in general terms?

Before turning to specific regulations such as the Code of Criminal Procedure or the Code of Civil Procedure, we must first consider the very concept of legal representation. In principle, legal representation involves a professional acting on behalf of a client in court proceedings at various levels. In the first submission in a case, a professional lawyer submits a power of attorney granting them authority to act on behalf of and for the client, thereby gaining the right to file motions and objections, enter into settlements, and appeal against judgments handed down in the case.

Legal representation in civil proceedings

Under the Code of Civil Procedure, the concept of legal representation is introduced by Article 86 of the Code, granting the parties the option to act before the court in person or through a representative. On the basis of this provision, the legislator leaves the parties the right to choose whether they will act independently or seek the assistance of a professional. Appearing in court is a concept encompassing the performance of all procedural acts provided for at every stage of the proceedings, both during and outside the hearing. This involves representing the client during the hearing, as well as drafting procedural documents and undertaking other acts necessary to safeguard their best interests. It should be borne in mind, however, that the mere fact of a professional representative acting in a case does not preclude the party’s personal participation in procedural steps.

In civil proceedings, the legislator imposes, in certain specific situations, the so-called mandatory representation by a barrister or solicitor, as regulated in Article 871 of the Code of Civil Procedure. In proceedings before the Supreme Court, representation of the parties by solicitors or legal advisers, as appropriate, is a statutory requirement, since, in accordance with the provisions of the aforementioned article, a party acting independently and in person lacks so-called capacity to sue. According to the latest case law of the Supreme Court, it is recognised that the purpose of the mandatory representation by a barrister or solicitor is to ensure that appeals lodged with the Supreme Court meet statutory requirements and demonstrate the level of substantive quality that can be expected from a person authorised to provide professional legal assistance.

The legislator has also indicated the need for professional legal representation in proceedings concerning intellectual property; however, in this case, the possibility of a patent attorney’s participation is also reserved.

Court-appointed representative in civil proceedings

Under the Code of Civil Procedure, the possibility of ‘court-appointed’ legal aid is also provided for, which stems from the rule in Article 45 of the Polish Constitution, reflecting the realisation of the constitutional right to a fair trial. An application for the appointment of a court-appointed representative may be submitted both by a party wholly or partially exempt from court costs and by a party who has not obtained such an exemption. As a rule, the appointment of a court-appointed representative for a party takes place only upon the party’s application.

Exceptionally, the court may appoint a barrister or solicitor ex officio without a party’s application in cases concerning incapacitation, the revocation or modification of incapacitation for the person concerned by the application for incapacitation, or for a person who has been incapacitated, if that person is unable to file an application due to their mental health and the court considers the participation of a barrister or solicitor in the case to be necessary. Such an application may be filed prior to the commencement of proceedings, at the court where the case is to be brought. A party also has the option of filing it at any subsequent stage of the proceedings.

Legal representation in criminal proceedings

Under the provisions of criminal procedure, the issue of legal representation is broadened due to the distinction between defence counsel and legal representatives, depending on the party that the legal professional is to represent during the proceedings. Firstly, the legislator has stipulated that, pursuant to Article 77 of the Code of Criminal Procedure, both the defendant and the auxiliary prosecutor are entitled to no more than three defence counsel or legal representatives.

As in civil proceedings, the Code of Criminal Procedure provides for the implementation of the constitutional principle set out in Article 42(2) of the Constitution of the Republic of Poland, according to which everyone against whom criminal proceedings are brought has the right to a defence at all stages of the proceedings. In the provisions of the Code of Criminal Procedure, the right to a court-appointed defence counsel is commonly referred to as the ‘right of the poor’. The accused has the right to request that a court-appointed defence counsel be assigned to them, provided that two conditions are met: namely, they do not have a defence counsel of their own choosing and they demonstrate that they are unable to bear the costs of their defence without compromising the necessary maintenance of themselves and their family. This rule is reflected in Article 78 of the Code of Criminal Procedure, and the decision on this matter is taken by order of the president of the court, the head of the division, an authorised judge or a court clerk in cases specified by law.

Although the right of the indigent is a discretionary right within the meaning of the Code of Criminal Procedure, as well as the rights of the accused themselves, the Act also provides for circumstances in which the involvement of a professional defence counsel is necessary. The requirements for mandatory defence are set out in Articles 79 and 80 of the Code of Criminal Procedure, which exhaustively list the situations requiring the involvement of a professional lawyer, namely:

• where the defendant is under 18 years of age;
• where the defendant is deaf, mute or blind;
• where there is reasonable doubt as to whether the defendant’s ability to understand the significance of the act or to control his conduct was excluded or significantly impaired at the time the act was committed;
• where there is reasonable doubt as to whether the defendant’s mental health permits them to participate in the proceedings or to conduct their defence independently and reasonably;
• where the court considers it necessary due to other circumstances hindering the defence;
• where proceedings are being conducted against the defendant before a regional court, in the course of which he has been charged with committing a crime.

A court-appointed defence counsel is appointed from the list of defence counsel pursuant to Article 81 of the Code of Criminal Procedure.

The right to a defence is enshrined not only in the Constitution

As is evident from the above reasoning, the right to a defence arising from the fundamental principles enshrined in the Constitution of the Republic of Poland is extensively safeguarded by regulations not limited to a single sphere of law. The legislature equally grants the parties to the proceedings the possibility of independently choosing a representative, as well as allowing them, in specific circumstances, to apply for the appointment of a court-appointed representative. This reflects both a commitment to upholding the fundamental rules of judicial proceedings and a recognition of citizens’ autonomy in pursuing their claims and defending their vital interests.