As “Rzeczpospolita” wrote last week, the ultimate Court in the Chamber of Professional work overturned the judgments of the corporate courts of 2 instances, acquitting a lawyer against the charge of advertising violating ethical regulations. It was a simple ad containing the lawyer's name, information that he was active in Rybnik, and a link to the firm's website. The Court found that although, at the time of the act (2018) and the ruling (2020), the barrister did not implement the alleged Services Directive in its deontological provisions, there is no obstacle to applying it straight to the facts covered by it. This act states that associate States must abolish any full ban on advertising for regulated professions (including lawyers).
– I believe that the ruling is correct and in line with the EU Services Directive," says acquitted lawyer Piotr Rykowski. – I anticipate a justification for the written ruling of the SN. After reading it, I will decide on the possible compensation for wrongful conviction due to the tardiness of self-government in the introduction of the provisions of the directive to the "Agency Ethics Collection" – he adds.
– Knowing that the erstwhile government was not in line with the Services Directive, I have consistently acted since the beginning of this word to align professional deontology with the provisions of the Directive," says NRA president Przemysław Rosati. “I do not know the reasons for the judgment, so I find it hard to foretell whether it will affect another cases of this type. The dubious position of the Chamber of Professional work itself, which is obvious, does not prejudge that its argument is wrong. But sometimes even nuances decide whether a certain decision or its justification may be the basis for building arguments for requests to resume proceedings in another cases. However, it is good that at the level of self-government the case is closed and our Code of Ethics is in agreement with EU rules – he adds.
He points out that, in the light of the law, the acquitted lawyer has never been convicted. The mention of punishment should so vanish from the individual record, though it most likely never went there. In accordance with the procedure, the final decisions of the disciplinary courts from which the cassation was lodged shall not be enforceable until it has been examined.
According to Radosław Bashuk, a criminal law lawyer and erstwhile justice of the Higher Disciplinary Court of Advocates, the ultimate Court ruling on an individual cassation case does not give emergence to a reopening of proceedings in another cases. This does not alter the fact that the judgement of the ultimate Court considers it appropriate:
– Putting aside the controversy surrounding the regularity of the establishment of the Chamber of Professional work and its judges, it must be admitted that the argument for this decision is correct, explains Mr Bashuk.
He recalls that more than 8 years ago, in October 2016. The Higher Disciplinary Court of Advocates (whose seat at the time) issued a akin ruling, applying the Services Directive and stating that it cannot be prosecuted disciplinaryly for the specified fact of advertising, although of course it can and should be assessed whether a circumstantial advertising message is ethical or not.
– In principle, the ruling of the SN should affect the line of case law of the barristers' courts in akin cases. However, with the Chamber of Professional Responsibility, the situation is more complicated – says Agnieszka Helsinki, the president of the Disciplinary Court of the Bar Association in Warsaw.
– As a lawyer, however, I believe that the directive should be applied directly, even before it was implemented, and that so applies to all cases prior to the amendment of the "Collection of Bar Ethics and Professional Dignity" to allowable commercial information. However, why disciplinary courts only applied national rules here and considered that there was a delicacy, it is hard for me to say," he stresses.
He adds that, in addition to the aforementioned ruling of the ultimate Disciplinary Court concerning AdWords of 2016 (WSD 120/15), the Disciplinary Court in Warsaw has issued akin decisions even before the directive was implemented, indicating that this explanation is correct.
– Our position is invariable – says Przemysław Rosati – The Chamber of Professional work does not warrant a "independent and impartial court". Lawyers complain of her judgments to the ETPC, with a good chance of success. The Polish state does not know how to deal with this problem, so it does not only give lawyers the right to court in disciplinary proceedings. As a consequence of the ‘reforms’ of 2015–2023, it does not supply access to a court within the meaning of the Act, he concludes.
