In connection with the petition submitted to the Senate regarding changes to the Code of Civil Procedure, the Senate prepared an amendment to the act prohibiting the appearance of attorneys as witnesses.

The draft amendment amends Article 259 of the Code of Civil Procedure by adding attorneys to the list of individuals who cannot be witnesses. Therefore, it will be irrelevant whether the attorney in question is a professional attorney (an attorney, legal counsel, patent attorney, or a licensed restructuring advisor) or an attorney who does not have the status of a legal professional (in particular, a family member).

According to the judgment of the Court of Appeal in Warsaw of 25 May 2015, I ACa 958/14, "A legal representative, both professional and lay, may be a witness, but until he or she testifies, he or she may not be present at the examination of other witnesses (Article 264 of the Code of Civil Procedure)" . As well as in the judgment of the Court of Appeal in Katowice of 14 February 2014, I ACa 1034/13, one can read that "The fact that the representative testified in the case as a witness does not nullify his or her status as a mandatary of the plaintiff, especially since the provision of Article 259 of the Code of Civil Procedure does not establish a prohibition on examining an attorney as a witness" .

Taking the above into account, the attorney cannot invoke professional secrecy, and his testimony may also include circumstances unfavorable to the party he represents, which he learned about during his conduct of the case.

Under current law, there is no absolute prohibition on questioning a party's attorney in civil proceedings as a witness. Article 261 § 1 of the Code of Civil Procedure provides that no one has the right to refuse to testify as a witness, with the exception of the party's spouse, ascendants, descendants, siblings, and relatives by marriage in the same line or degree, as well as persons related to the party by adoption. An attorney who is an attorney or legal counsel has the right to refuse to answer questions covered by professional secrecy, as regulated by the provisions of the Act of 26 May 1982 – Law on the Bar and the Act of 6 July 1982 on Legal Counsel.

According to the bill's justification, the introduction of an absolute ban on questioning an attorney as a witness in civil proceedings is intended to enhance the protection of a party's interests. Primarily, it will ensure increased confidentiality of communications between the party and their attorney, but also by preventing attorneys from disclosing any knowledge about their principal, including information acquired in circumstances other than conducting the case or providing legal advice.

In his expert opinion on the draft bill amending the Code of Civil Procedure, Dr. Maciej Muliński notes certain risks of abuse of the law if this amendment is introduced, such as appointing a potential opposing witness as an attorney. However, in his final opinion, he emphasizes that "Introducing the proposed regulation under Article 259, item 5 of the Code of Civil Procedure should enhance the protection of the party represented by an attorney by ensuring the confidentiality of information provided by the party to the attorney and guaranteeing the maintenance of the trust necessary for the proper performance of the attorney's role .

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