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The costs of unpaid legal representation provided by a court-appointed legal adviser SK 53/22

On 20 April 2023, the Constitutional Tribunal considered Ms M.T.-B.’s constitutional complaint pertaining to the costs of unpaid legal representation provided by a court-appointed legal adviser.[1]

The Constitutional Tribunal adjudicated that § 4(1) 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 (Journal of Laws – Dz. U. of 2019, item 68, as amended) – insofar as the costs of unpaid legal representation provided by a court-appointed legal adviser, and incurred by the State Treasury, are specified in the said provision in the amount lower than the minimum fee for the services of legal advisers set in the Minister of Justice’s  Regulation of 22 October 2015 on rates for the services of legal advisers (Journal of Laws – Dz. U. of 2018, item 265, as amended), adopted on the basis of Article 225(2) and (3) of the Act of 6 July 1982 on Legal Advisers (Journal of Laws – Dz. U. of 2022, item 1166), which concerns minimum fees to be charged in cases where the counsel is chosen by the clientis 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 Tribunal declared the unconstitutionality of fee rates for legal advisers acting before courts as court-appointed attorneys and defence counsel, insofar as the said rates are determined at a lower level than those for legal advisers who also provide legal representation in substantively identical court cases, but who have been chosen by their clients.

The Constitutional Tribunal adjudicated on the entire legal norm derived from several provisions, and not solely on a specific item in the list of rates which had constituted the basis for adjudging the fee in the complainant’s individual case. Thus, the judgment pertains to the entire legal norm setting out the list of rates, and is not limited to an excerpt of the norm expressed in a specific part of a legal provision. The declaration of unconstitutionality within such a limited scope would contradict the aim and essence of the hierarchical review of the conformity of legal norms to the Constitution.

The Tribunal shared the view expressed in its previous judgments, namely the cases ref. nos. SK 66/19, SK 68/21, SK 85/22, that there are no grounds for differentiating minimum rates for legal advisers providing legal representation in court proceedings, depending on whether they have been appointed by a court or chosen by their clients. The Tribunal emphasised that, on the one hand, the profession of the legal adviser falls under the category of ‘a profession in which the public repose confidence’, mentioned in Article 17 of the Constitution, which implies certain responsibilities that are public in nature.

However, on the other hand, the Tribunal also pointed out that ensuring professional legal representation to impoverished persons constitutes an obligation of a state ruled by law. In practice, the financial burden of those obligations is split between the State Treasury and the persons exercising the profession in which the public repose confidence, in the way that the State Treasury incurs the costs of the functioning of the judiciary and legal advisers incur the costs related to the exercise of the profession in which the public repose confidence.

The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Piotr Pszczółkowski – Presiding Judge; Judge Bartłomiej Sochański – Judge Rapporteur; Judge Jakub Stelina.


[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.