How to implement mandatory attorney-counseling? Important Supreme Court ruling

Moreover, this lack of procedural action is not made good by the subsequent assignment of a representative to the complainant, even ex officio. In short, the representative must be appointed before the letter is sent to the Supreme Court.

This is the essence of the latest Supreme Court ruling, warning against the risk of such negligence, probably resulting from the ignorance of those appealing to the Supreme Court.

It was about an entry in the land register. It ended with a dispute about the obligation to have a lawyer and legal adviser

This issue arose in a case concerning an entry in the land and mortgage register, in which the District Court in Wejherowo dismissed a complaint to establish the unlawfulness of a final judgment of the District Court, which the dissatisfied participant had submitted to the Supreme Court. The reason was that it had not been drawn up by a qualified lawyer. The participant appealed to the Supreme Court, but he also personally drew up an appeal with a request to appoint an official representative for him in the appeal proceedings.

The Supreme Court dismissed the appeal without considering it on the merits, recalling that, pursuant to Article 87 (1) § 1 of the Code of Civil Procedure, the parties must be represented by advocates or legal advisers in the proceedings before the Supreme Court, i.e. the so-called advocate and legal adviser obligation. This means that only persons with the so-called capacity to file motions may file documents (on behalf of the parties) and appear before the Supreme Court.

This mandatory representation also applies to procedural actions related to the proceedings before the Supreme Court and undertaken before a lower court – as in the case of an appeal filed through the District Court. Exceptions to this rule are strictly defined: the obligation to have an attorney-counselor does not apply, e.g.

in proceedings for exemption from court fees and for the appointment of an attorney or legal adviser. And also when the party, its body or proxy is a judge, prosecutor, notary or professor of law.

Mandatory attorney-counseling. When is it necessary to use the services of lawyers?

- Failure to comply with the requirement to be represented by an attorney-attorney is irremovable, and therefore an appeal affected by such a deficiency is subject to rejection without calling on the complainant to supplement it. This deficiency cannot be removed by appointing a qualified attorney for the complainant, also ex officio. Any supplementation or support by a professional attorney of the appeal filed by the party in person also does not meet the statutory requirement to maintain the requirement to be represented by an attorney-attorney. For these reasons, an appeal filed in person by a participant deprived of the capacity to postulate was subject to rejection as inadmissible - indicated judge Dariusz Dończyk in the conclusion of the Supreme Court ruling.

– The regulation on the obligation to have a lawyer is relatively clear, but many people may not be familiar with the applicable procedures, so when initiating a court case, they should seek advice from a lawyer as to the procedure and conditions under which they can conduct it. They can also apply to the court before filing a lawsuit, and even more so an appeal to the Supreme Court, to appoint an ex officio attorney. Such an attorney, after determining that a given remedy has a chance of success, may file it. After the complaint to the Supreme Court is rejected, the complainant may try to file it again, this time with the participation of a lawyer. The question is, however, whether the deadline for such action has not expired – indicates attorney Roman Nowosielski.