Awarding the attorney’s fees in the Romanian civil trial, creating consistency in the Romanian Courts practice
| Author | Beatrice Onica Jarka |
| Pages | 147-154 |
Beatrice Onica Jarka. Lecturer, Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: beatrice.onicajarka@cunescu.ro).
Page 147
The relevance and applicability of article 274 para. 3 from the Romanian Civil Procedural Code (RCPC) is still a matter of controversy left at the subjective will of the judges in the Romanian Civil Trial.
According to article 274 para.3 RCPC “the judges have the right to increase or decrease the attorney’s fees, according to the fees provided in the table of the minimal attorneys, whenever they shall consider with reasoning that the attorneys fees are in an inappropriate disproportion small or high with the value of the claim or the work done by the lawyer”. Article 274 para.3 RCPC is applicable only for the attorney’s fees of the awarded litigating party in the Romanian civil trial to be paid by the losing litigating party.
The application of the said provisions in the sense of increasing the attorney’s fees requested by the awarded litigating party is not an issue, as it probably never happened. A reason may be that the courts do not feel tempted to extra value the attorneys work.
On contrary, the decreasing of the attorney’s fees by the courts according to article 274 para.3 RCPC has become one of the most practiced judge action in the Romanian civil trial. Such action has resulted many times in arbitrary application of this article in the mentioned sense and has materialized in an inconsistency of practice at the different level of civil jurisdiction and in the infringement of fundamental procedural warranties, as we shall further present.
The paper has a strong relevance from the point of view of the existing practice and the possibility to create consistency in such practice in relation to the existing legal instruments for creating consistency.
Page 148
In the specific doctrine, the subject of the right of the Courts to decrease the attorneys’ fee has been few times approached. We make this qualification based on the fact that, the content of article 274 para.3 RCPC has existed in this form since early 1989. There are several articles written on this aspect, which concentrate on elements of material law used in the appreciation of the criteria presented by article 274 para.3 RCPC by the Courts. The doctrine as such is expressed within this paper, as it is the point for starting the analysis of the Courts’ practice in this sense.
Article 274 para.3 RCPC provides for a right of the judges to increase or reduce the attorneys’ fees of the awarded litigating party to be supported by the losing litigating party. An opinion in the doctrine1 is that the courts are not obliged to reduce or increase automatically the attorneys’ fees and they can opt in doing so at their own discretion. Such interpretation is giving rise to different procedural aspects regarding the exercise of this right by the court ex - officio or at the request of the parties in the trial and the rights to a fair trial by providing the necessary evidences. We shall further comment on this aspect.
Article 274 para.3 RCPC provides also for the following criteria of appreciation to be used by the Courts in exercising the said right as:
a). the table of minimal attorneys’ fees which does not longer exist, and
b). the appreciation of an inappropriate disproportion between the attorneys’ fees and the value of the claim or the work done by the attorney.
The application of the mentioned criteria is a very controversial issue, which gives room to the court to use arbitrary in applying article 274 para.3 RCPC as we further shall see.
Article 274 paragraph 3 RCPC stipulates also that any decision based on this article has to be reasoned by the court.
The main trends in applying article 274 para.3 RCPC are the following:
Non-applicability of article 274 para.3 RCPC with the reasoning that the relationship between the client and the attorney, including the quantum of the fee, represents the rule of the parties with the consequence that the judge cannot reduce the quantum of such fee.
Applicability of article 274 para.3 RCPC in the sense that the judges are entitled to decrease the attorney’s fees and that by doing so the judge does not interfere with the juridical relationship existing between the attorney and his client, but only disposes in connection to what will be the extent to which such fees shall be supported by the losing litigating party in the trial.
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The first trend has been confirmed in practice in 1996 by the Supreme Court of Justice Commercial Section decision no. 914/1996 and followed further in the practice of lower or higher Courts.
Page 149
Such opinion criticized by doctrine2 is reasoned on the provisions of Law no. 51/1995 regulating the lawyer’s profession and the Statute of lawyer’s profession which provides according to article 30 that, the contract between the attorney and his client cannot be interfered or controlled, directly or indirectly by no state organ and that, the complainants regarding the attorney’s fees may be solved by the Bar Association organs, only.
The critics to such opinion were in the sense that in the civil trial the attorney’s fees of the awarded litigating party issue gives birth to two different juridical relations. The first is a material law contractual relation between the attorney and his client. The second is a procedural relationship born between the losing litigating party and the awarded litigating party based on procedural default, according to which defaulting litigating party has to support the legal expenses including attorneys’ fees, incurred by the awarded litigating party. The two relations are separate one of another and the reducing of the attorney’s fees by the judge in the trial does not modify or otherwise impede the contractual relation between the attorney and his client which establishes such fees.
We do not fully agree with the opinions expressed in the criticism to the first trend Court practice. It is true that within the procedural relation between the parties, the judges award fully or partially the attorneys’ fees of the awarded litigating party, but implicitly by doing so, the judge also considers the contractual relation between the attorney and his client. The very criteria provided by article 274 para.3 RCPC are criteria according to which the relationship between the attorney and his client is evaluated by the judge. The Court, in appreciating the inappropriate...
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