Amendments brought to the Law regarding the organization and practice of the lawyer’s profession
Law no. 25 of 24 March 2017 regarding the amendment and completion of Law no. 51/1995 regarding the organization and practice of the lawyer’s profession, published in the Official Gazette no. 210 of 28 March 2017
We have summarized below the main amendments and completions brought by law no. 25 of 24 March 2017 to Law no. 51/1995 regarding the organization and practice of the lawyer’s profession (“Law 51/1995”).
The independence of the lawyer’s profession
For the first time, Law 51/1995 ascertains the principle of independence of the lawyer’s profession from a fiscal stand point: “the activity conducted by a lawyer in accordance with the conditions regulated by law and by the By-laws of the lawyer’s profession, regardless of the form and way in which the profession is carried out, which generates professional income, may not be reassessed as dependent activity in accordance with the provisions of the Fiscal code.”
The special legal guardianship
New wording has been added to article 3 of Law 51/1995 which regulates the activities that can be carried out by a lawyer in the sense that lawyers can perform “activities of special legal guardianship as per the law and the By-laws of the lawyer’s profession”.
The amendments brought to the law align article 58 of the Civil procedure code which regulate the special legal guardianship with the Law 51/1995. The lawyer may be appointed special legal guardian and may be remunerated for carrying out activities specific to this quality.
The electronic registry of the legal deeds prepared by lawyers
The amendment does not bring novelty but regulates under the law the obligations which are already provided by the By-laws of the lawyer’s profession.
Thus, the legal deeds prepared as per art. 3 (1) letter c) and d) of Law 51/1995, other than the legal deeds prepared for assisting and representing the clients, (i) have to be kept by the lawyer in his professional archive, in the order they were prepared, (ii) within 3 days as of the date they were executed the legal deeds have to be registered with the Electronic registry of the legal deeds prepared by lawyers as per paragraph (1) letter c) and d), as per the procedure regulated by the Regulation for the organization and functioning of the registry, as approved by the UNBR Council, otherwise the deed is not enforceable against third parties.
The electronic registry evidencing the patrimony allocated to the lawyer’s profession
Similar to the Electronic registry of the legal deeds prepared by lawyers, this amendment transfers at law level the provisions already existing under the By-laws of the lawyer’s profession.
Thus, as of the incorporation of the forms in which the lawyers are carrying out their profession as well as following this date, the lawyers have the right to establish a patrimony allocated for carrying out this profession, in accordance with the law, the procedure regulated for the putting into place of the Electronic registry evidencing the patrimony allocated to the lawyer’s profession, as per the conditions established by UNBR Council in accordance with the Regulation regarding the organizing and functioning. The registration with the registry ensures the enforceability against third parties as per the applicable law.
The confidentiality of the communications between the lawyer and the client
In line with the principle of guarding the professional secret several amendments were brought to Law 51/1995, inter alia:
a) A new wording was added to art. 35 of Law 51/1995 in the sense that: the public authorities may not take written documents and may not apply the confiscation measure with respect to: (a) written documents which incorporate communications between the lawyer and his/her client; (b) written documents that incorporate references made by the lawyer with respect to aspects concerning the defense of the client.
b) The relationship between the lawyer and the person he/she assists or represents may not be subject to technical surveillance except for the case when there are data evidencing that the lawyer commits or is about to commit a criminal offence that is regulated by art. 139 paragraph (2) of the Criminal procedure code. If during or after the measure is applied it results that the surveillance measures have concerned also the relationship between the lawyer and the suspect or the defendant he/she is representing, the evidences may no longer be used in relation to any criminal trial and they are going to be destroyed immediately by the prosecutor. The judge who has applied the measure is informed immediately by the prosecutor. The judge decides to inform the lawyer.
c) A new criminal offence is regulated concerning the disclosure of confidential information: the disclosure by the lawyer, without right, of confidential information concerning the private domain of his/her client or which concerns an operational or commercial secret which was confined by virtue of the same quality or which has become known by virtue of carrying out activities specific to the profession represents criminal offence sanctioned with imprisonment from one to 5 years.
d) It does not represent criminal offence the fact that the lawyer does not disclose to the competent authorities criminal offences which he/she becomes aware of during performing actions specific to the profession, except for the following criminal offences: 1. killing, killing by mistake or any other criminal offence which triggered the death of a person; 2. genocide, criminal offences against humanity or war criminal offences against persons; 3. the ones provided by art. 32-38 of Law no. 535/2004 regarding the prevention and eradication of terrorism, as further amended. In all cases, the lawyer who prevents the criminal offenses or the consequences thereof in other ways than by informing the authorities is free from liability.
Any public communication or any publicity performed by a lawyer or any form in which he/she is carrying out his/her profession is allowed, provided that he/she complies with the regulations concerning the profession and the ones concerning the independence, dignity, professional integrity, keeping the professional secret, it is objective and true.
The By-laws of the lawyer’s profession regulates in detail the provisions applicable in what concerns the advertisement performed by lawyers or by the forms in which they carry out their activity for the purpose of attracting clients.
Even if the new provisions regulate in a positive manner the professional advertisement (“any … publicity … is allowed” vs. “the lawyer is forbidden from …”), in fact the legal framework is not substantially changed as the restrictions provided by the By-laws of the lawyer’s profession continue to apply.
According to the new legal provisions, in all cases, the disciplinary legal proceeding may be started within maximum one year as of the date the Bar’s council becomes aware of the deed but no later than 3 years as of the date the deed was performed.
Previously, the legal wording provided that the disciplinary legal proceedings may be initiated within maximum one year as of the date the deed was performed.
The disciplinary sanction consisting in fines was increased from RON 50 – RON 500 to RON 500 – RON 5,000.