Exemption from the requirement of undergoing legal training for trainee advocates, as well as a new form of an examination for trainee advocates K 6/12
At the hearing on 12 February 2013 at 1 p.m., the Constitutional Tribunal considered an application, submitted by the National Council of Advocates, an exemption from the requirement of undergoing legal training for trainee advocates, as well as a new form of an examination for trainee advocates.
The Constitutional Tribunal adjudicated that:
1. Article 66(1)(4)(b) of the Act of 26 May 1982 - the Law on the Profession of Advocate
a) is consistent with Article 2 of the Constitution,
b) insofar as it concerns persons who passed an examination to be admitted to the profession of judge or public prosecutor after 1 January 1991, as well as during the period of 5 years before submitting an application to be included in the register of advocates, for the total period of at least 3 years performed duties which required legal expertise directly related to the provision of legal assistance by an advocate or a legal advisor, on the basis of a civil-law agreement signed in the law offices of an advocate, an association of advocates, a civil-law partnership, a registered partnership, a professional partnership or a limited partnership, referred to in Article 4a(1) of the Act of 26 May 1982, or the law offices of a legal advisor, a civil-law partnership, a registered partnership, a professional partnership or a limited partnership, referred to in Article 8(1) of the Act of 6 July 1982 on Legal Advisors, is consistent with Article 17(1) of the Constitution.
2. Article 66(1)(5)(b) of the Act of 26 May 1982, referred to in point 1, is consistent with Article 2 and Article 17(1) of the Constitution.
3. Article 66(2)(3) of the Act of 26 May 1982 referred to in point 1:
a) is consistent with Article 2 of the Constitution,
b) insofar as it concerns persons who, after graduating from the faculty of law, for the period of at least 5 years, during the period no longer than 10 years before submitting an application to be admitted to take the examination, performed duties which required legal expertise directly related to the provision of legal assistance by an advocate or a legal advisor in the law offices of an advocate, an association of advocates, a civil-law partnership, a registered partnership, a professional partnership or a limited partnership, referred to in Article 4a(1) of the Act of 26 May 1982, referred to in point 1, or the law offices of a legal advisor, a civil-law partnership, a registered partnership, a professional partnership or a limited partnership, referred to in Article 8(1) of the Act of 6 July 1982 on Legal Advisors, is consistent with Article 17(1) of the Constitution.
4. Article 68(3)(5) of the Act of 26 May 1982, referred in point 1, is consistent with Article 2 of the Constitution.
5. Article 78a(4)(6) of the Act of 26 May 1982, referred to in point 1, is consistent with Article 2 of the Constitution.
6. Article 77a(1)-(3), (6)-(10) and (12), Article 78(1), (3), (4), (8), (9) and (15), Article 78e, Article 78h(1)-(3), (6), (10) and (14) as well as (5) insofar as it makes reference to Article 75f(2)(1), Article 75f(2)(2), Article 75f(2)(4), Article 75f(2)(5) as well as Article 75f(3) of the Act of 26 May 1982 referred to in point 1 are consistent with Article 17(1) of the Constitution.
7. Article 78d(1)-(8) of the Act of 26 May 1982, referred to in point 1, is consistent with Article 17(1) of the Constitution.
As to the remainder, the Tribunal discontinued the proceedings.
The subject of the allegation comprised three groups of provisions of the Act of 26 May 1982 - the Law on the Profession of Advocate, namely provisions on:
- admission to the profession of advocate without a prerequisite of taking an examination for trainee advocates or admission to an examination for trainee advocates without a prerequisite of undergoing legal training for trainee advocates;
- the participation of advocates’ self-government in the preparation and administration of the examination for trainee advocates
- the legislator’s formula for the examination for trainee advocates.
The National Council of Advocates argued that the said provisions were inconsistent with Article 2 of the Constitution, and in particular with the principle of appropriate legislation, derived therefrom, as well as with Article 17(1) of the Constitution, which states that self-governments may be created within a profession in which the public repose confidence, and such self-governments shall concern themselves with the proper practice of such professions. The Tribunal did not share the view of the applicant.
The Constitutional Tribunal stated that, when determining the content of the challenged provisions, the legislator acted within the scope of his regulatory freedom. In the view of the Tribunal, the Constitution is not infringed by the provisions which correlate the possibility of being included in the register of advocates without a prerequisite of taking the above-mentioned examination, or being admitted to the examination without a prerequisite of undergoing legal training for trainee advocates, with the actual experience, gained over a specified period, as regards performing duties which require legal expertise directly related to the provision of legal assistance by an advocate or a legal advisor.
The performance of the said duties, over a period specified by the legislator, when supervised by an advocate or a legal advisor, allows a given trainee to gain practical experience, and consequently to gain qualifications which suffice for him/her to be included in the register of advocates or to be admitted to the examination for trainee advocates. In the case of a person applying for an entry in the register of advocates, advocates’ self-government has a possibility of verifying the actual period of the person’s legal training. Moreover, it may evaluate whether the said person will guarantee that s/he will exercise the profession of advocate with due diligence.
The Constitutional Tribunal shared the view presented by the National Council of Advocates that the said concern with the proper practice of a given profession in which the public repose confidence implied the self-government’s involvement in determining rules for a professional examination. At the same time, the proper involvement of the self-government should be construed as its participation in specifying the scope of the examination, and only then - due to the character of the examination - as its involvement in verifying skills which were indispensable for that profession.
As the said self-government has been granted the power to influence the scope, procedure as well as evaluation of the results with regard to the said examination, in the view of the Constitutional Tribunal, the provisions regulating the preparation and administration of the examination do not infringe the Constitution.
In the Tribunal’s opinion, the lack of an oral part in the examination for trainee advocates, the introduction of a single-choice test as one of the elements of the examination, and the legislator’s determination of the scope of skills are all solutions adopted within the scope of the legislator’s powers set out in Article 17(1) of the Constitution. When adopting those solutions, the legislator did not infringe the indicated provision of the Constitution.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was Judge Sławomira Wronkowska-Jaśkiewicz.
The judgment is final and its operative part shall be published in the Journal of Laws.