The situation of an advocate/attorney-at-law appearing in civil proceedings both as a legal representative and witness is controversial because it goes beyond the scope of providing legal assistance. This poses a threat to his or her independence and the obligation to maintain professional secrecy. Combining these procedural roles at the same time is negatively perceived by organizations of legal professions, hence the prohibition, resulting from ethical rules, on proposing a motion for the questioning of an advocate/attorney-at-law as a witness, or the inability to provide legal assistance in the case if the lawyer testified as a witness about the circumstances of the case. Such a situation is formally possible, as the Code of Civil Procedure does not prohibit testimony by a professional legal representative of a party. The protection of professional secrecy is ensured by the right to refuse to answer a question if the testimony would entail a violation of essential professional secret (Article 261(2)). The obligation to keep professional secrecy under the Law on Advocates and the Act on Attorneys-at-Law prevents an advocate/attorney-at-law from testifying about circumstances related to the legal assistance provided, also in the case of the consent or request made by the client being represented. With this respect, there have been drafts to amend the civil procedure, but each of them is flawed. Under the draft law of 2018, the advocate/attorney-at-law had the right to refuse to testify about circumstances covered by professional secrecy, but it provided for the court’s right to exempt the advocate/attorney-at-law from professional secrecy, in a way similar to the provisions of criminal procedure. The second draft, which is now at the stage of the legislative process (after the petition of 2019 was filed), rules out the possibility of testifying as a witness by a legal representative. This amendment raises a lot of reservations, and in its modified version, submitted as part of public consultation by legal professional associations, boils down to petrifying the protection of advocate/attorney-at-law secrecy in civil proceedings. This is a risky solution, as it may lead to a restriction of the right to a fair trial on the level of evidence taking by rendering it impossible, in special situations, to weigh this value and protection of the client’s interest against the value of the protection of professional secrecy.
Arkadiusz Bereza (Thu,) studied this question.
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