The Bar Act (the “Act”) provides for some scenarios in which an attorney-at-law may provide free legal aid and legal assistance to their clients when they are:
- individuals who are entitled to alimony;
- individuals in financial difficulty;
- relatives or other legal practitioners.
When legal aid is provided in any of these cases, if the opposing party in the respective proceedings is sentenced to pay the expenses made in the case, the attorney-at-law is entitled to a remuneration, the amount of which is to be determined by the court (Article 38, para. 3 of the Bar Act”).
However, contradictory case law has arisen when it comes to such scenarios. It is not settled whether the court has the right to assess the presence of the grounds for granting free legal aid when a request for a remuneration has been made by the attorney-at-law, or whether the agreement between the parties to the legal aid agreement itself is binding for the court. Due to these diverse rulings of the courts an interpretive case – No. 3/2025 – has been initiated before the General Assembly of the Civil and Commercial Departments of the Supreme Court of Cassation, which shall provide a definite answer to the question raised above.
One of the opinions that can be held is that in order for the court to grant an attorney-at-law the requested remuneration under Article 38, para. 2 of the Bar Act, it is sufficient to present in the proceedings before the court the relevant legal aid agreement, according to which the same aid is provided free of charge. The will of the parties and their assessment of the existence of any of the grounds specified in the Act are enough for the remuneration to be awarded – it is not considered necessary for the parties to the agreement to prove the relevant circumstances and prerequisites.
The opposite opinion, which is also held at large in the case law, is based on the understanding that in order for an attorney-at-law to be entitled to remuneration in the case of providing free legal aid and assistance, said aid and assistance shall be provided to a person belonging to one of the categories specified in the Bar Act; the opposing party in the proceedings shall be sentenced to pay the expenses made in the case; and then the court should assess whether the party receiving free legal aid is actually in financial difficulty (or entitled to alimony, or has family or other ties with the attorney-at-law). In these situations, the court’s assessment should be made individually for each proceeding, based on the facts of the case. If there is no dispute between the parties in the proceedings, the existence of a legal aid agreement, under which the same should be provided free of charge, shall be accepted as sufficient perquisite for granting the remuneration. The opposing party, however, could challenge these claims, bearing the weight of proving that the conditions for granting free legal aid are not met in accordance with the Act.
Undoubtedly, the resolution, that the Supreme Court of Cassation adopts, whatever it may be, will have a big impact not only on the legal authority given to the courts, but also on the right of the individuals to negotiate the terms of their legal aid agreements freely. In the meantime, we are expectant to see whether the Supreme Court of Cassation will prefer to take a more severe approach in order to limit the abuse of rights and to ensure the application of the legal provision allowing attorneys-at-law to receive remuneration only when the factual situation really justifies the grant of free legal aid; or it will give priority to the will of the parties as a leading and sufficient ground for providing free legal aid and thus the right to remuneration.
The news above is for information purposes only. It is not a (binding) legal advice. For a thorough understanding of the subjects covered and prior acting on any issue discussed we kindly recommend Readers consult Ilieva, Voutcheva & Co. Law Firm attorneys at law.
