Terminating the primary power of attorney vis-à-vis a substitute power of attorney

Using the services of an attorney-at-law or an advocate often requires granting the lawyer a power of attorney to act on behalf of the principal. This is particularly the case in litigation, where a party is usually represented in the courtroom by a professional representative.

Scope of general power of attorney in civil proceedings

In civil litigation, the scope of a granted power of attorney is defined by Article 91 of the Polish Code of Civil Procedure. According to this provision, a general power of attorney includes the mandate for:

1. all procedural actions connected with the case, including, but not limited to, a counterclaim, a cassation appeal, a motion for resumption of the proceedings and the proceedings resdulting from its submission, as well as the bringing of a direct intervention against the principal;
2. any action relating to interim relief and enforcement;
3. the granting of a further power of attorney to an advocate or attorney-at-law;
4. conclusion of a settlement, waiver of a claim or recognition of a claim, if these actions have not been excluded in the given power of attorney;
5. the collection of litigation costs from the opposing party.

What is a substitute power of attorney?

It follows from the provisions of the Code of Civil Procedure that a person granting a general power of attorney must take into account that an attorney acting on their behalf may also authorise other suitably qualified persons to act on their principal. A further power of attorney granted to other lawyers is referred to as a substitute power of attorney. A substitute power of attorney provides the same authority to act in a case as a power of attorney granted to an attorney-at-law or advocate directly by the principal.

This is a very practical solution as it allows, for example, for a case to be handled by several lawyers within one law firm. This practice safeguards the interests of the principal and ensures the efficiency and continuity of the proceedings.

Substitute power of attorney and the termination of the principal power of attorney

Sometimes, however, the principal decides to change the attorney. In such cases, it is necessary to terminate the power of attorney of the attorney-at-law or advocate whose services the principal would like to resign from and to notify the court.

What happens then to the substitute powers of attorney granted by the attorney-at-law or advocate (the principal attorney) to other lawyers (the substitute attorneys)?

It would seem that since a substitute power of attorney is granted without the participation of the principal and solely based on intent of the principal attorney, substitute powers of attorney expire upon termination of the principal power of attorney.

However, a different view was taken by the Supreme Court of Poland in its resolution of 16 June 2023, file ref. no. III CZP 120/22. According to the Court, the authority of substitute attorneys does not expire upon termination of the principal power of attorney by the principal. As a result of the granting of a substitute power of attorney, a relationship is created between the substitute attorney and the principal, which is therefore independent and autonomous from the principal attorney’s relationship with the same principal. The subjects of the resulting (substitute) power of attorney relationship from the moment it is established are exclusively the principal and the further attorney thus appointed. In turn, the continued existence of this relationship is not dependent on the status of the primary power of attorney.

Conclusion

From the point of view of both the principal and the attorney representing them, it is important for both parties to verify whether the principal attorney has been granting further (substitute) powers of attorney in a given case. On the other hand, if substitute powers of attorney have been granted, it is worth ensuring that the substitute powers of attorney are also terminated when cooperation is discontinued.

advocate Anna Krankowska