Who can perform a court substitution? Advocate, attorney-at-law, trainee – rules and limits

The question in the title sounds trivial, yet in practice it generates real problems: a trainee sent before the wrong court, an attorney-at-law in a case where only an advocate could act as defence counsel, a "lawyer" without a licence found through an advert. The consequences can be dire – from a case being struck off the cause list to a plea that the proceedings are invalid. So let us put the rules in order once and for all.

Advocate and attorney-at-law – full capacity to substitute

A substitution (further power of attorney) may be accepted only by an advocate or attorney-at-law – this follows directly from art. 91 pkt 3 k.p.c. Both may act before any court, of any instance, including the Supreme Court and the Supreme Administrative Court. In civil, commercial and administrative matters their position is fully equivalent.

The exception – criminal cases

In criminal proceedings defence counsel may be an advocate or an attorney-at-law (art. 82 k.p.k.), except that an attorney-at-law cannot serve as defence counsel while in an employment relationship – other than academic and teaching work. Before instructing a criminal defence, therefore, you must confirm the provider's employment status. A detail that is easy to forget – and one that can undo the whole exercise.

The trainee – stands in, but is not a substitute

An advocate's trainee and an attorney-at-law's trainee do not receive a substitution but an authorisation to stand in for their principal (art. 77 Prawa o adwokaturze and art. 35¹ ustawy o radcach prawnych respectively). The difference is not cosmetic: the trainee acts on behalf of the representative, not the party, and is subject to seniority restrictions.

The advocate's trainee – time-based limits

• after 6 months of the traineeship – may stand in for an advocate before district courts, prosecuting authorities and administrative bodies;
• after 18 months of the traineeship – also before the remaining courts, except the Supreme Court, the Supreme Administrative Court, the Constitutional Tribunal and the Tribunal of State.

The attorney-at-law's trainee

The rules are analogous – the 6- and 18-month thresholds and an identical list of excluded courts. Moreover, an advocate's trainee may, with the principal's consent, stand in for an attorney-at-law as well (and vice versa) – the legislature allowed for reciprocity here.

What a trainee will never do

Before the Supreme Court, the Supreme Administrative Court, the Constitutional Tribunal and the Tribunal of State, a trainee will not appear regardless of seniority. Nor will they draft a cassation appeal on their own or sign an appeal where the law requires the signature of an advocate or attorney-at-law. Sending a trainee beyond their competence is asking for trouble.

Who must NOT be sent to a substitution

For the record: a substitute cannot be a lawyer not entered on the roll (even one with a doctorate), a legal adviser, a "compensation firm" or a friend from university. In proceedings where advocate/attorney-at-law representation is not mandatory, a party may be represented by other persons (e.g. a family member), but that is not a court substitution in the professional sense – and no representative should arrange such a "substitution".

How to match the provider to the task – a practical matrix

In practice the choice comes down to three questions:

1. Which court and which instance? District court – a trainee after 6 months will do; court of appeal – an advocate, attorney-at-law or a trainee after 18 months; Supreme Court / Supreme Administrative Court – only an advocate or attorney-at-law.

2. What kind of task? Delivery of a judgment or a simple adjournment – a technical step; examining a key witness – you need an experienced representative who knows the case file.

3. Which branch of law? In criminal cases we check the entitlement to act as defence counsel; in family cases – experience; in commercial cases – familiarity with the specifics.

In my view, scrimping on the provider for evidentiary steps is a false economy: a 200 zł difference in the fee can cost you a lost case.

Summary

The circle of those entitled to perform a substitution is closed: an advocate, an attorney-at-law and, to a limited extent, a trainee with the appropriate seniority. The principal bears responsibility for the right choice, which is why verifying credentials is not a formality but an obligation.

On Wokanda.net every provider undergoes verification of their entry on the roll of advocates or attorneys-at-law before they see their first assignment. The principal sees at once to whom they are entrusting the case.

Find a verified substitute →