The purpose of this article is to clarify the nature of legal professions as experts. In particular, an attempt has been made to answer the question of what, in the case of these professions, is the social role that requires the application of abstract knowledge to specific cases. The starting point for consideration is social theories that see this role as a mediation and integration of the social structure. Next, using the methodology of cognitive metaphor, this characterization is further clarified by juxtaposing it with another type of expert activity, i.e., translation. Thus, practical problems were identified in the work of a lawyer, related to mediating in the social structure between abstract knowledge of law and solving individual legal problems. These problems were characterized primarily as difficulties in the use of different languages by institutions and citizens.

Populism researchers draw attention to the vital role of language in the implementation of Popularist agenda. This role is discernible in propaganda practices, in attempts to redefine pre-existing notions, and in changing social – but also – linguistic conventions.

The recent wave of populism (2010–2021) touches upon law and the rule of law in a special way, and thus phenomena such as propaganda, redefinition of notions and change of convention are often implemented in the field of the language of law. This elaboration is an attempt to analyse the mechanism of changes in the linguistic conventions governing the language of the law and legal language caused by populism, while the tool for this analysis is the philosophy of law applying the achievements of the philosophy of language.

Using the concepts and theories proposed by E. Laclau, N. Lacey, R.G. Millikan and F. Recanati, in this study, I explain what the change of legal culture – being conducted by populists – is, defined as a set of linguistic and behavioural conventions relevant to the law.

The predominant thesis of the research paper in this area is the claim that the populist change of legal culture consists in turning concepts that are vital for law into empty or constantly floating signifiers, and in destroying legal conventions by 1) ceasing to reproduce behaviours that have so far constituted linguistic and behavioural conventions in the field of law, or 2) initiating the reproduction of new behaviours. In both cases, the modification of the convention entails the loss of their ability to perform functions that are appropriate within the meaning of R.G. Millikan, and thus causes a decline or loss of social usefulness. The analysis carried out enables to draw conclusions as to how the populist change of legal culture can be counteracted. 

The article deals with the issue of the constitutional basis for the functioning of the National Bar of Attorneys-at-Law as set forth in Article 17 of the Basic Law. The author stresses the particular importance of bar associations functioning independently from political power, linking their constitutional attributes to the axiology of the democratic system. He infers the need to preserve the independence of the National Bar of Attorneys-at-Law from their systemic function as protectors of the freedoms and rights of individuals and as collaborators in the administration of justice. The key determinant of the place and role of bar associations in the system of law protection authorities is their constitutional status of public trust professions and the related function of protecting the public interest in the activities of the National Bar of Attorneys-at-Law. Further in the paper, the author focuses on the issue of ensuring the proper practice of the profession by the National Bar of Attorneys-at-Law, e.g., through disciplinary liability mechanisms, which in essence are supposed to guarantee politically independent, reliable, and effective legal assistance is provided by attorneys-at-law to their clients. In the last part of the publication, the author points out the current threats to the constitutionally guaranteed independence of the National Bar of Attorneys-at-Law, seeing their sources in the consistent questioning of the rule of law standards by political authorities. According to the author, its manifestations include, inter alia, excessive interference by the Minister of Justice in the field of professional self-government of the attorneys-at-law and attempts by politicians of the ruling majority to question the constitutionality of the principle of mandatory membership in the National Bar of Attorneys-at-Law, which is fundamental for the independent and effective functioning of this professional association.

This article presents the issues of the mission of the professional self-government of legal advisers as well as the mission of legal advisers associated with the self-government. The elements defining, in fact, the mission of professional self-government, together with the mission of legal advisers, are determined by the goals set for the profession of legal adviser, being participation in the justice system and supporting a democratic state ruled by law. Art. 17 sec. 1 of the Constitution contains a regulation expressed in the obligation to harmoniously combine the many functions of the self-governments of professions of public trust. Importantly, the function of professional self-government is not only to shape the environmental interests of people performing public trust professions but also to seek to agree them with the public interest. Professional self-governments are primarily committed to the priority of implementing the public interest.

Attorneys-at-law, both at the individual and group level, i.e., as a professional self-government, when performing their duties and obligations arising from the provisions of law and deontological norms defining their professional status, have a role of a systemic nature to play. This role is intended to contribute to the strengthening and development of the democratic character of the Republic of Poland. A particularly important tool for carrying out this task of the National Bar of Attorneys-at-Law is the possibility to present opinions on draft legal acts, a constitutional tool which, due to the very essence of the attorney-at-law’s profession, allows the National Bar of Attorneys-at-Law to present at the stage of legislative work possible threats arising from the proposed normative acts to constitutionally guaranteed civil rights and freedoms.

The systemic role of attorneys-at-law in a democratic state ruled by law can also be seen in an individual dimension, which is manifested primarily in the course of providing legal assistance (as part of the professional practice). After all, the rule of law clause cannot be deprived of its fundamental component, which is considered to be the rights and freedoms of the individual. In this concept of the rule of law, attorneys-at-law, who participate in the implementation of the rule of law by providing legal assistance, can and should be treated as its constituent.

The systemic role to be played by attorneys-at-law individually and in gremio, i.e., as a professional self-government, becomes particularly important in times of crisis of the state ruled by law. The National Bar of Attorneys-at-Law, like the bar associations of other legal professions, is particularly predestined to take the floor in public debate on changes in the administration of justice that may violate the constitutional order.

The goal of this article is to analyze and evaluate the phenomenon of professional secrecy of attorneys-at-law and their independence. This article is a result of the author’s particular interest in the issues concerning the independence of attorneys-at-law and its limits. The essence of this publication is to illustrate the complexity of this phenomenon.

The author tried to pay special attention to situations in which the obligation to maintain professional secrecy is subject to restrictions resulting from the specific nature of particular types of proceedings – primarily criminal proceedings, but also proceedings in the field of competition protection. The author also points out the consequences that an attorney-at-law faces for violating the obligation to maintain professional secrecy. 

The subject of this article is the status of the self-government of attorneys-at-law analysed in the light of the Code of Administrative Procedure from the perspective of addressing complaints, requests, and petitions. The analysis leads to the conclusion that based on the Code of Administrative Procedure, the self-government of attorneys-at-law is a social organization. Thus, its bodies are the bodies of a social organization, unless they handle administrative cases. The paper distinguishes four categories of situations connected with the application of the provisions on complaints and petitions as part of the activities of the self-government of attorneys-at-law.

The article conducts a legal qualification of attorney’s-at-law professional activities performed for the benefit of capital companies conducting legal activities and their clients. It also considers the arguments for and against introducing the possibility of attorney’s-at-law legal practice in the form of participation in capital companies authorized to provide legal assistance. In conclusion, the author clearly advocates for the change of the currently binding prohibitions on attorney’s-at-law profession.

The article discusses issues related to the professional mobility of attorneys-at-law in light of the Code of Ethics of Attorneys-at-Law. The author discusses changes in the profession or form of its practicing in terms of movement between the public and private sectors as well as within the private sector itself. The article also addresses the issue of changing the form of practicing the profession or the entity where the profession is practiced. These phenomena, though partially regulated by law, escape ethical regulation; the Code covers them only to a narrow extent (professional secrecy and conflict of interest). The question is, therefore, whether this and the indirect application of several other principles of professional ethics (independence, dignity of the profession, loyalty, and trust) can be considered appropriate. The author analyzes if the application of the above ethical principles is sufficient in terms of safeguarding against the unethical use of relationships or networks from the professional past as well as avoiding the related reduction in independence, conflicts of interest, breach of professional secrecy, or loyalty. 

The article analyzes normative regulations relating to the possibility of establishing the right to a benefit for a caregiver of a person with disabilities in the case of suspension of business activity conducted by an attorney-at-law. It outlines how to practice law as an attorney-at-law, suspend activities conducted in the form of a law firm of attorney-at-law, as well as types of benefits for a caregiver of a person with disabilities, and the premises determining those benefits

The paper discloses the reasons why the principles of remunerating attorneys-at-law who provide legal aid ex officio do not meet constitutional standards as well as indicates the resulting legal consequences. The author concludes that differentiating the remuneration of attorneys-at-law appointed by a party to the proceedings and attorneys-at-law appointed by the court for the same activities undertaken as part of the legal aid provided is unconstitutional, especially in the light of the conclusions resulting from the analysis of the judgement of the Constitutional Tribunal of 23 April 2020, file ref. SK 66/19. The paper also interprets the possible ways of removing the aforementioned unconstitutionality in the process of judicial application of the law, which may be significant before the compliance with the Constitution of the principles for remuneration of attorneys-at-law providing ex officio legal aid will be ensured by the legislator. 

The right to participate in court proceedings of a court-appointed attorney is an essential guarantee of ensuring the right to a fair trial for the less well-off. A vital element of the institution of ex officio representation is the issue of financing this part of the activity conducted by advocates and attorneys-at-law. From the procedural perspective, this issue primarily relates to the method of adjudicating on the remuneration and costs of a court-assigned attorney. In this area – despite slow changes consisting in abandoning the completely free-of-charge activities of the attorney performed as part of legal aid – there is still no consistent and comprehensive regulation. As has been described in this article, there are still situations where an attorney providing legal aid in civil proceedings may not receive any remuneration because the State Treasury is only subsidiarily liable for these costs. In addition, it takes years to obtain reimbursement of legal representation costs for unpaid legal aid. In this article, one of the issues related to legal representation in civil cases has been addressed; namely, the issue of adjudication by the court on this remuneration. The stimulus to take up this topic has been provided, inter alia, by a number of postulates for changes in this field. Recently, there have also been specific proposals put forward for changes in the legislative. Therefore, the subject of this paper is not only to diagnose the current state of law and jurisprudence with regard to adjudicating on the remuneration of an attorney assigned by the court but, above all, to refer to the proposed proposals and to put forward specific postulates for the future.

The article analyzes the standard of the accused’s right to enjoy professional legal assistance as developed in the case law of the European Court of Human Rights. Its purpose is to illustrate the Court’s broad understanding of this right, which is supported not only by its essential substantive components but also in its connection to the principle of a fair trial. It highlights the subjective and objective scopes of the accused’s right to the assistance of the defense counsel as well as the question of the waiver of this right, the prerequisites for appointment of the public defender, and the criteria for the implementation of the guarantee standard arising from this right. In the conclusion, the author presents several reflections resulting from the juxtaposition of the “conventional” standard of the right to the assistance of the defense counsel with its implementation in the Polish legal order.

The purpose of this article is to identify challenges that attorneys-at-law face in administrative court proceedings. These include the subjective scope of the obligatory representation provided by advocates or attorneys-at-law and the consequences of the professional counsel’s shortcomings for the rights and obligations of the represented party as well as issues relating to the electronization of proceedings, participation of an attorney-at-law in a hearing, and the costs of legal representation. In conclusion, it has been pointed out that there is a need for a dialogue between judges and attorneys-at-law and advocates, in order to develop a more effective and argumentative way of conducting the trial and to discuss current issues that could improve the course of administrative court proceedings. Attention was also drawn to the need to introduce new forms of professional development for attorneys-at-law and the use of new technologies.

FUNDING

This paper is a part of research project no: UMO-2018/30/E/HS5/00421, financed by the National Science Centre (Poland), devoted to the appealability of administrative courts judgments.

Gloss to the judgement of the Supreme Administrative Court (SAC) of 6 May 2021, II GSK 1057/20, is another voice in the debate on the quality of training for young lawyers. The authors considered the judgment to be an obstacle to the formulation of general theses relating to the legal training and vocational training of trainees attorney-at-law and their impact on the quality of the services they provide in the future. The role of the National Bar of Attorneys-at-Law is to ensure the proper exercise of those professions in the public interest and for the protection of the public interest. The training of young lawyers therefore affects not only the provision of legal services to different actors, but also the need to safeguard the public interest. In the glossed judgement the Court rightly pointed out that the result of the examination must correspond to the level of legal training. However, it went beyond the scope of the decisions on the results of the examinations, which are laid down in a regulation according to which the administrative courts do not review the marks awarded by the examiners, but the result of the examinations based on them. A divergent, inappropriate judgement by the SAC could lead to a five-instance trial. The SAC has no power to comment on the content of the appraisals, which would require an appropriate legal definition of the criteria for the submission of the individual appraisals, which would appear to be impossible in the context of expert appraisals.

The purpose of this article is to clarify the nature of legal professions as experts. In particular, an attempt has been made to answer the question of what, in the case of these professions, is the social role that requires the application of abstract knowledge to specific cases. The starting point for consideration is social theories that see this role as a mediation and integration of the social structure. Next, using the methodology of cognitive metaphor, this characterization is further clarified by juxtaposing it with another type of expert activity, i.e., translation. Thus, practical problems were identified in the work of a lawyer, related to mediating in the social structure between abstract knowledge of law and solving individual legal problems. These problems were characterized primarily as difficulties in the use of different languages by institutions and citizens.

Populism researchers draw attention to the vital role of language in the implementation of Popularist agenda. This role is discernible in propaganda practices, in attempts to redefine pre-existing notions, and in changing social – but also – linguistic conventions.

The recent wave of populism (2010–2021) touches upon law and the rule of law in a special way, and thus phenomena such as propaganda, redefinition of notions and change of convention are often implemented in the field of the language of law. This elaboration is an attempt to analyse the mechanism of changes in the linguistic conventions governing the language of the law and legal language caused by populism, while the tool for this analysis is the philosophy of law applying the achievements of the philosophy of language.

Using the concepts and theories proposed by E. Laclau, N. Lacey, R.G. Millikan and F. Recanati, in this study, I explain what the change of legal culture – being conducted by populists – is, defined as a set of linguistic and behavioural conventions relevant to the law.

The predominant thesis of the research paper in this area is the claim that the populist change of legal culture consists in turning concepts that are vital for law into empty or constantly floating signifiers, and in destroying legal conventions by 1) ceasing to reproduce behaviours that have so far constituted linguistic and behavioural conventions in the field of law, or 2) initiating the reproduction of new behaviours. In both cases, the modification of the convention entails the loss of their ability to perform functions that are appropriate within the meaning of R.G. Millikan, and thus causes a decline or loss of social usefulness. The analysis carried out enables to draw conclusions as to how the populist change of legal culture can be counteracted. 

The article deals with the issue of the constitutional basis for the functioning of the National Bar of Attorneys-at-Law as set forth in Article 17 of the Basic Law. The author stresses the particular importance of bar associations functioning independently from political power, linking their constitutional attributes to the axiology of the democratic system. He infers the need to preserve the independence of the National Bar of Attorneys-at-Law from their systemic function as protectors of the freedoms and rights of individuals and as collaborators in the administration of justice. The key determinant of the place and role of bar associations in the system of law protection authorities is their constitutional status of public trust professions and the related function of protecting the public interest in the activities of the National Bar of Attorneys-at-Law. Further in the paper, the author focuses on the issue of ensuring the proper practice of the profession by the National Bar of Attorneys-at-Law, e.g., through disciplinary liability mechanisms, which in essence are supposed to guarantee politically independent, reliable, and effective legal assistance is provided by attorneys-at-law to their clients. In the last part of the publication, the author points out the current threats to the constitutionally guaranteed independence of the National Bar of Attorneys-at-Law, seeing their sources in the consistent questioning of the rule of law standards by political authorities. According to the author, its manifestations include, inter alia, excessive interference by the Minister of Justice in the field of professional self-government of the attorneys-at-law and attempts by politicians of the ruling majority to question the constitutionality of the principle of mandatory membership in the National Bar of Attorneys-at-Law, which is fundamental for the independent and effective functioning of this professional association.

This article presents the issues of the mission of the professional self-government of legal advisers as well as the mission of legal advisers associated with the self-government. The elements defining, in fact, the mission of professional self-government, together with the mission of legal advisers, are determined by the goals set for the profession of legal adviser, being participation in the justice system and supporting a democratic state ruled by law. Art. 17 sec. 1 of the Constitution contains a regulation expressed in the obligation to harmoniously combine the many functions of the self-governments of professions of public trust. Importantly, the function of professional self-government is not only to shape the environmental interests of people performing public trust professions but also to seek to agree them with the public interest. Professional self-governments are primarily committed to the priority of implementing the public interest.

Attorneys-at-law, both at the individual and group level, i.e., as a professional self-government, when performing their duties and obligations arising from the provisions of law and deontological norms defining their professional status, have a role of a systemic nature to play. This role is intended to contribute to the strengthening and development of the democratic character of the Republic of Poland. A particularly important tool for carrying out this task of the National Bar of Attorneys-at-Law is the possibility to present opinions on draft legal acts, a constitutional tool which, due to the very essence of the attorney-at-law’s profession, allows the National Bar of Attorneys-at-Law to present at the stage of legislative work possible threats arising from the proposed normative acts to constitutionally guaranteed civil rights and freedoms.

The systemic role of attorneys-at-law in a democratic state ruled by law can also be seen in an individual dimension, which is manifested primarily in the course of providing legal assistance (as part of the professional practice). After all, the rule of law clause cannot be deprived of its fundamental component, which is considered to be the rights and freedoms of the individual. In this concept of the rule of law, attorneys-at-law, who participate in the implementation of the rule of law by providing legal assistance, can and should be treated as its constituent.

The systemic role to be played by attorneys-at-law individually and in gremio, i.e., as a professional self-government, becomes particularly important in times of crisis of the state ruled by law. The National Bar of Attorneys-at-Law, like the bar associations of other legal professions, is particularly predestined to take the floor in public debate on changes in the administration of justice that may violate the constitutional order.

The goal of this article is to analyze and evaluate the phenomenon of professional secrecy of attorneys-at-law and their independence. This article is a result of the author’s particular interest in the issues concerning the independence of attorneys-at-law and its limits. The essence of this publication is to illustrate the complexity of this phenomenon.

The author tried to pay special attention to situations in which the obligation to maintain professional secrecy is subject to restrictions resulting from the specific nature of particular types of proceedings – primarily criminal proceedings, but also proceedings in the field of competition protection. The author also points out the consequences that an attorney-at-law faces for violating the obligation to maintain professional secrecy. 

The subject of this article is the status of the self-government of attorneys-at-law analysed in the light of the Code of Administrative Procedure from the perspective of addressing complaints, requests, and petitions. The analysis leads to the conclusion that based on the Code of Administrative Procedure, the self-government of attorneys-at-law is a social organization. Thus, its bodies are the bodies of a social organization, unless they handle administrative cases. The paper distinguishes four categories of situations connected with the application of the provisions on complaints and petitions as part of the activities of the self-government of attorneys-at-law.

The article conducts a legal qualification of attorney’s-at-law professional activities performed for the benefit of capital companies conducting legal activities and their clients. It also considers the arguments for and against introducing the possibility of attorney’s-at-law legal practice in the form of participation in capital companies authorized to provide legal assistance. In conclusion, the author clearly advocates for the change of the currently binding prohibitions on attorney’s-at-law profession.

The article discusses issues related to the professional mobility of attorneys-at-law in light of the Code of Ethics of Attorneys-at-Law. The author discusses changes in the profession or form of its practicing in terms of movement between the public and private sectors as well as within the private sector itself. The article also addresses the issue of changing the form of practicing the profession or the entity where the profession is practiced. These phenomena, though partially regulated by law, escape ethical regulation; the Code covers them only to a narrow extent (professional secrecy and conflict of interest). The question is, therefore, whether this and the indirect application of several other principles of professional ethics (independence, dignity of the profession, loyalty, and trust) can be considered appropriate. The author analyzes if the application of the above ethical principles is sufficient in terms of safeguarding against the unethical use of relationships or networks from the professional past as well as avoiding the related reduction in independence, conflicts of interest, breach of professional secrecy, or loyalty. 

The article analyzes normative regulations relating to the possibility of establishing the right to a benefit for a caregiver of a person with disabilities in the case of suspension of business activity conducted by an attorney-at-law. It outlines how to practice law as an attorney-at-law, suspend activities conducted in the form of a law firm of attorney-at-law, as well as types of benefits for a caregiver of a person with disabilities, and the premises determining those benefits

The paper discloses the reasons why the principles of remunerating attorneys-at-law who provide legal aid ex officio do not meet constitutional standards as well as indicates the resulting legal consequences. The author concludes that differentiating the remuneration of attorneys-at-law appointed by a party to the proceedings and attorneys-at-law appointed by the court for the same activities undertaken as part of the legal aid provided is unconstitutional, especially in the light of the conclusions resulting from the analysis of the judgement of the Constitutional Tribunal of 23 April 2020, file ref. SK 66/19. The paper also interprets the possible ways of removing the aforementioned unconstitutionality in the process of judicial application of the law, which may be significant before the compliance with the Constitution of the principles for remuneration of attorneys-at-law providing ex officio legal aid will be ensured by the legislator. 

The right to participate in court proceedings of a court-appointed attorney is an essential guarantee of ensuring the right to a fair trial for the less well-off. A vital element of the institution of ex officio representation is the issue of financing this part of the activity conducted by advocates and attorneys-at-law. From the procedural perspective, this issue primarily relates to the method of adjudicating on the remuneration and costs of a court-assigned attorney. In this area – despite slow changes consisting in abandoning the completely free-of-charge activities of the attorney performed as part of legal aid – there is still no consistent and comprehensive regulation. As has been described in this article, there are still situations where an attorney providing legal aid in civil proceedings may not receive any remuneration because the State Treasury is only subsidiarily liable for these costs. In addition, it takes years to obtain reimbursement of legal representation costs for unpaid legal aid. In this article, one of the issues related to legal representation in civil cases has been addressed; namely, the issue of adjudication by the court on this remuneration. The stimulus to take up this topic has been provided, inter alia, by a number of postulates for changes in this field. Recently, there have also been specific proposals put forward for changes in the legislative. Therefore, the subject of this paper is not only to diagnose the current state of law and jurisprudence with regard to adjudicating on the remuneration of an attorney assigned by the court but, above all, to refer to the proposed proposals and to put forward specific postulates for the future.

The article analyzes the standard of the accused’s right to enjoy professional legal assistance as developed in the case law of the European Court of Human Rights. Its purpose is to illustrate the Court’s broad understanding of this right, which is supported not only by its essential substantive components but also in its connection to the principle of a fair trial. It highlights the subjective and objective scopes of the accused’s right to the assistance of the defense counsel as well as the question of the waiver of this right, the prerequisites for appointment of the public defender, and the criteria for the implementation of the guarantee standard arising from this right. In the conclusion, the author presents several reflections resulting from the juxtaposition of the “conventional” standard of the right to the assistance of the defense counsel with its implementation in the Polish legal order.

The purpose of this article is to identify challenges that attorneys-at-law face in administrative court proceedings. These include the subjective scope of the obligatory representation provided by advocates or attorneys-at-law and the consequences of the professional counsel’s shortcomings for the rights and obligations of the represented party as well as issues relating to the electronization of proceedings, participation of an attorney-at-law in a hearing, and the costs of legal representation. In conclusion, it has been pointed out that there is a need for a dialogue between judges and attorneys-at-law and advocates, in order to develop a more effective and argumentative way of conducting the trial and to discuss current issues that could improve the course of administrative court proceedings. Attention was also drawn to the need to introduce new forms of professional development for attorneys-at-law and the use of new technologies.

FUNDING

This paper is a part of research project no: UMO-2018/30/E/HS5/00421, financed by the National Science Centre (Poland), devoted to the appealability of administrative courts judgments.

Gloss to the judgement of the Supreme Administrative Court (SAC) of 6 May 2021, II GSK 1057/20, is another voice in the debate on the quality of training for young lawyers. The authors considered the judgment to be an obstacle to the formulation of general theses relating to the legal training and vocational training of trainees attorney-at-law and their impact on the quality of the services they provide in the future. The role of the National Bar of Attorneys-at-Law is to ensure the proper exercise of those professions in the public interest and for the protection of the public interest. The training of young lawyers therefore affects not only the provision of legal services to different actors, but also the need to safeguard the public interest. In the glossed judgement the Court rightly pointed out that the result of the examination must correspond to the level of legal training. However, it went beyond the scope of the decisions on the results of the examinations, which are laid down in a regulation according to which the administrative courts do not review the marks awarded by the examiners, but the result of the examinations based on them. A divergent, inappropriate judgement by the SAC could lead to a five-instance trial. The SAC has no power to comment on the content of the appraisals, which would require an appropriate legal definition of the criteria for the submission of the individual appraisals, which would appear to be impossible in the context of expert appraisals.