1. On 1 January 2016 the greater part of the regulations resulting from the Act on Free Legal Aid and Legal Education (the “Act”) of 5 August 2015 came into force. The remaining part of the regulations of the Act, intended to ensure that the aid system works, came into force on 31 August 2015.

2. The Act has no influence on the shape of the existing system of appointing attorneys ex officio in court proceedings. The following natural persons are entitled to free legal aid:

(a) those who were granted a social assistance benefit under the Act on Social Assistance of 12 March 2004 in a period of 12 months preceding their request to grant free legal aid, and with regard to whom no decision was issued during that period to return a benefit collected which had not been due,

(b) those who hold a valid Big Family Card,

(c) those who have obtained the certificate referred to in the Act on Combatants and Some Persons who were Victims of War Repressions and the Post-war Period of 24 January 1991,

(d) those holding a valid veterans’ identity card or an aggrieved veterans’ identity card (referred to in the Act on Veterans of Actions outside the Polish State of 19 August 2011),

(e) those who have not yet turned 26 years of age,

(e) those who have turned 65 years of age,

(g) those who are facing a dangerous situation or who have suffered losses as a result of natural disasters or technical failures.

3. Free legal aid is in principle provided personally by an attorney-at-law (advocate or legal counsel) on the basis of an agreement concluded with a county, and in particularly justified cases under their authorisation by a trainee advocate or trainee legal counsel. An advocate or legal counsel granting aid in a particular free legal aid bureau can, for important reasons, refuse to grant free legal aid, but must in that case inform the person entitled to aid about other free legal aid bureaus in the county.

4. The justification in the draft law does not state what reasons are so important that an advocate or legal counsel can refuse to grant free legal aid. In connection with this, one must consult educated opinions on the basis of the Act on Advocates, which contains the same words in Article 28 par. 1: “An advocate can refuse to grant legal aid only for important reasons, of which the advocate must inform the interested party. Doubts over granting or refusing to grant legal aid will be resolved by the Regional Bar Council, and in cases which cannot be delayed, by its dean”.

In accordance with the opinions expressed by commentators, important reasons allowing an advocate to refuse to grant legal aid include:

(a) a lack of trust between the advocate and the client,

(b) previously granting legal aid to an opposing party in a given case or in another case connected with it, e.g. to an aggrieved party in preparatory proceedings,

(c) previously holding a public function in a given case,

(g) when another advocate, who is a person close to a given advocate, conducts a given case or has already granted legal aid to the opposing party in that case or in one connected with it,

(e) the advocate’s submission of a statement as a witness in a given case,

(f) a serious personal disagreement between the advocate and a person against whom he is supposed to conduct a case.

5. Each year the county concludes an agreement with the Regional Bar Council and the council of the Regional Legal Counsel Chamber appropriate for the county authorities’ headquarters, on granting free legal aid in that county. These agreements specify, among others:

(a) the number of advocates and legal counsel who will be granting free legal aid in the county,

(b) the obligation by the Regional Bar Council or the council of the Regional Legal Counsel Chamber to indicate by name the advocates or legal counsel and their substitutes who are advocates or legal counsel, appointed to grant free legal aid,

(c) the rules of remunerating advocates and legal counsel granting free legal aid.

6. In practice, forming the list of advocates granting free legal aid on the basis of the Act works out as follows:

• once a year, the Regional Bar Council sends all advocates information (a questionnaire), via an extranet, about starting to accept applications for the group providing free legal aid on the basis of the Act (in 2015 this was in October, and in 2016 it will be in September),
• advocates who send a negative response or who do not react to the information will not be considered on the list.

7. Up to now, there have been more people willing to provide free legal aid than places available, so names were drawn in public by the dean (in the various counties). In practice, only those advocates who expressed such a desire will provide free legal aid on the basis of the Act.

8. There is a similar forming of the list of legal counsel granting free legal aid, except that legal counsel do not fill out an online questionnaire on the desire to grant such aid, but instead send their applications in writing to the Regional Legal Counsel Chamber. As in the case of advocates, legal counsel have their names drawn and are entered on the list of legal counsel granting such aid.

9. Also, non-government organisations engaging in pro bono work are entrusted with running half the legal aid bureaus. Under a non-government organisation, legal aid can be granted by:

(a) a tax advisor,

(b) a person who has completed higher law studies and holds a master’s degree, or who has completed law studies abroad which are recognised in Poland and has at least three years’ experience in performing acts requiring legal knowledge which are directly connected with providing legal aid.

• In the event that legal aid is granted by a person indicated in item 9 (b), the person entitled to receive the aid fills out a document in which he/she declares that he/she has been informed about the fact that the liability for damages of the person granting the free legal aid is excluded, except in the case of deliberately causing damage.

10. Free legal aid covers:

(a) informing the person entitled to such aid about the applicable legal state of affairs, about that person’s rights, or about his/her obligations,

(b) indicating to that person the manner in which his/her legal problem can be solved,

(c) if that person’s legal problem can only be solved by a court or court-administrative decision, the person providing the legal aid can help to prepare a draft document initiating such proceedings,

• however, the person granting the legal aid cannot provide help in preparing pleadings in pending preparatory or court proceedings, or documents in pending court-administrative proceedings (subject to what is stated below in item (iv),

(d) drawing up a draft document requesting:

• release from court costs,
• appointing an attorney ex officio in court proceedings,
• appointing an advocate, legal counsel, tax advisor or patent attorney in court-administrative proceedings.

11. Free legal aid does not cover:

(a) aid involving standing in for the entitled person before any bodies or courts,

(b) tax matters connected with conducting business activity,

(c) customs, foreign exchange and commercial law matters,

(d) matters connected with conducting business activity, except for preparations to commence such activity.

Commentary:

9. While advocates, legal counsel or tax advisors cannot, when granting free legal aid, perform acts which are not provided for by the Act (e.g. standing in for a person entitled to aid before law enforcement or administrative authorities or courts), nevertheless, given a lack of restrictions in the Act, it would seem that there is nothing to prevent professional attorneys from granting free legal aid to “entitled persons” to an extent going beyond the Act. Free legal aid could also be granted to persons to whom free legal aid has already been granted to the extent provided for by the Act. However, this would have to be done outside the place stipulated for granting free legal aid.

10. An advocate or legal counsel can, for example, to the extent provided for by the Act and as part of granting free legal aid, provide help in drawing up a document initiating court or court-administrative proceedings. It would seem that a situation is possible in which an advocate or legal counsel (and also a tax advisor, in court-administrative proceedings) who helped to draw up a document initiating proceedings could later stand in for someone in a pending case as an attorney appointed by a court ex officio. Such a possibility results from:

(a) Article 1173 par. 3 CPC, according to which, if a party, in a request to appoint an attorney ex officio, indicates the name of an advocate or legal counsel, the appropriate Regional Bar Council or council of the Regional Legal Counsel Chamber will, as far as possible and in agreement with the advocate or legal counsel indicated, appoint the advocate or legal counsel indicated by the party,

(a) Article 244 par. 3 of the Act on Proceedings before Administrative Courts, according to which, if a party, in a request to grant the right of aid, indicates the name of an advocate or legal counsel, the appropriate Regional Bar Council or council of the Regional Legal Counsel Chamber or the National Council of Tax Advisors will, as far as possible and in agreement with the advocate, legal counsel or tax advisor indicated, appoint the advocate, legal counsel, tax advisor or patent attorney indicated by the party,

(c) Article 87a of the Code of Criminal Procedure (appointing an attorney ex officio in court criminal proceedings) and Article 78 par. 1 and Article 80a par. 1 of the Code of Criminal Procedure (appointing ex officio, as appropriate, a defence lawyer in preparatory proceedings and in court proceedings), according to which a party other than the person accused, and also a suspect and the person accused, can request the appointment of an attorney/defence lawyer. As in civil and court-administrative proceedings, the entity entitled to file a request to appoint an attorney/defence lawyer ex officio can indicate the name of the attorney, but the court is not bound by the request in this matter. As Tomasz Grzegorczyk points out, “when indicating a defence lawyer ex officio, one must take into account potential suggestions made by the accused, if he/she makes them, but their omission does not encroach on his/her right to defence (e.g. in the ETPC ruling of 20 January 2005 in Mayzit v. Russia, complaint no. 63378/00, LEX no. 145706). The point is that in the case of a defence lawyer ex officio it is not – as compared to a defence lawyer by choice – a question of confidence in a particular advocate, but generally confidence in the advocate’s profession as being able to grant legal aid in criminal cases, and the purpose of appointing a defence lawyer ex officio is not to ensure that the accused will have the lawyer he or she wishes to have but cannot afford, but simply a defence lawyer who will guarantee him or her proper legal aid, i.e. taking into account only the advocate’s qualifications and specialisation in criminal cases”.