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The costs of unpaid legal representation provided by a court-appointed legal adviser SK 85/22

On 19 April 2023, the Constitutional Tribunal considered Mr P.M.’s constitutional complaint pertaining to the costs of unpaid legal representation provided by a court-appointed legal adviser.[1]

The Constitutional Tribunal adjudicated that § 8 of the Minister of Justice’s Regulation on the State Treasury’s payment of the costs of unpaid legal representation provided by a court-appointed legal adviser is inconsistent with Article 64(2) in conjunction with Article 31(3), Article 32(1), second sentence, and Article 92(1), first sentence, of the Constitution of the Republic of Poland.

The ruling was unanimous.

The constitutional issue under the Constitutional Tribunal’s consideration pertained to the differentiation of a legal adviser’s fees for legal representation based on the criterion of the mode of appointing the said counsel (i.e. by court appointment or via a contract with a client).

The complainant alleged that § 8 of the Minister of Justice’s Regulation of 3 October 2016, by setting minimum rates for court-appointed legal advisers at the level much lower than that for legal advisers chosen by clients, without statutory authorisation for doing so, arbitrarily differentiates among legal advisers in terms of their fees for legal representation they provide. The Constitutional Tribunal shared the complainant’s allegations and held that impugned § 8 of the Regulation of 3 October 2016 infringed a constitutional standard.

The Constitutional Tribunal took account of the fact that a substantially similar constitutional issue had already been addressed in its judgments ref. nos. SK 66/19 and SK 78/21. In the said judgments, the Tribunal declared the unconstitutionality of differentiation in advocates’ fees for providing legal representation. In those cases, the Tribunal assumed that the advocate’s right to a fee for providing legal representation constitutes a constitutionally protected property right. It also held that advocates make up a group of similar persons in view of the purpose and substance of the provisions under review. The Tribunal adopted the same assumptions with regard to legal advisers.

After considering that – regardless of whether legal representation before judicial authorities is provided on the basis of court appointment or the client’s choice – the primary purpose of the said representation amounts to guaranteeing parties’ access to a court so that they could assert the protection of their rights, the Tribunal found no reasonable arguments (not only constitutional ones) for justifying the unequal treatment of legal advisers in respect of fees for provided legal representation, depending on whether they acted on the basis of their client’s choice or they were appointed by the competent court. No such arguments arose from an analysis of the legislative work conducted on the draft version of the Regulation; nor were any such arguments put forward by the Minister of Justice, as a participant in the proceedings in the present case.

The Tribunal emphasised that the provision of court-appointed legal representation is related to the public task for the performance of which the state is primarily responsible, whereas the competent bar associations’ role is to co-participate in the said performance. Looking from that vantage point, the Tribunal held that the Minister of Justice’s assertion – namely, that the State Treasury’s payment of the costs of court-appointed legal representation allegedly justifies the admissibility of differentiation in the said fees for legal representation – leads to contrary conclusions to those arrived at by the said Minister. If – as the Minister argued – at the drafting stage, the law-maker had had the obligation to take account of “the financial situation of society and the public interest”, then, at the same time (precisely for the purpose of realising those values), the law-maker should have justified the grounds (e.g. the actual risk of undermining the stability of public finance, and related limitation on funds for legal aid) for setting court-appointed legal advisers’ fees at a much lower level than the fees of legal advisers chosen by clients; yet, the law-maker had not done so. In the Tribunal’s view, an analysis of the status of legal advisers and their roles in proceedings when they have been appointed and obliged to provide legal representation makes it possible to deem that the differentiation in their fees (i.e. setting fees for court-appointed legal representation at a much lower level) has no constitutional justification.

Once again declaring the unconstitutionality of the executive provisions which arbitrarily differentiated fees for professional legal representation depending on whether it was provided upon court appointment or the client’s choice, the Constitutional Tribunal again emphasised that there is an urgent need for the comprehensive and consistent regulation of those matters, including, in particular, at the statutory level.

The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Andrzej Zielonacki – Presiding Judge; Judge Piotr Pszczółkowski – Judge Rapporteur; Judge Zbigniew Jędrzejewski.


[1] Under Polish law, both advocates (Pl. adwokat) and legal advisers (Pl. radca prawny) make up the category of attorneys (attorneys-at-law), admitted to the Bar, and fully qualified to provide professional legal representation; the main difference between the first and the latter is the range of contracts on the basis of which they are permitted by law to provide their legal services.